J.  W.  BAILEY 


Case 
Shelf 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


JOHN      R.     MARA 


STANDARD  LAW  SCHOOL  CASE  BOOKS 

Administration  and  Government — Goodnow's  Cases  on  Government  and  Administra- 
tion, by  Frank  J.  Goodnovv,  Eaton  Professor  of  Administrative  Law  and  Municijial 
Science   in   Columbia  University.      1   volume  $2.o0   net. 

Agency — Mechem's  Cases  on  the  Law  of  Agency,  by  Floyd  n.  Mechem,  Professor  of 
Law  in  the  University  of  Chicago.      1  volume  $:J.OO  net. 

American  Administrative  Law — Goodnow's  Cases  on  American  Administrative  Lnw 
Including  Public  Officers  and  E.\traordinary  Legal  llemedies,  by  P'rank  J.  Good- 
now.      1   volume  $0,00  net. 

Appellate  Practice — Sunderland's  Cases  on  Appellate  I'ractice,  by  Edson  R.  Sunder- 
land, Professor  in  the  University  of  Michigan  Law  SchooL    $4.r>o  net. 

Bailments  and  Carriers — Goddard's  Cases  on  Bailments  and  Carriers,  by  Edwin  c. 
Goddard,    Professor    of    Law    in    the  University  of  Michigan.      1   volume  $3.75  net. 

Code  Pleading — Hinton's  Cases  Code  Pleading  Under  Modern  Codes,  by  Edwin  w. 
Hinton,    Professor    of   Law,    University   of   Missouri.      1    volume    ?4.00    net. 

Code  Pleading — Sunderland's  Cases  on  Code  Pleading,  by  Edson  R.  Sunderland, 
Professor  in   the   University  of  Michigan   Law   School.    $4.5o  wt. 

Commercial  Law — Bay's  Cases  on  Commercial   Law 

Common  Law  Pleading — Shipp  and  Daish's  Cases  on  Common  Law  Pleading,   by     E. 

Richard   Shipp  and   John   B.   Daish.      1   volume   $-'.50   net. 

Common  Law  Pleading- — Sunderland's  Cases  on  Common  Law  Pleading,  by  Edson  R. 
Sunderland,  Professor  in  the  University  of  Michigan  Law  School.    $4.50  net. 

Conflict  of  Laws,    Cases.       See  International   Law. 

Constitutional  Law — Boyd's  Cases  on  American  Constitutional  Law,  by  C.  E.  Boyd, 
second   edition   by   C.    E.   Boyd  $3.00   net. 

Criminal  Law,  Knowlton's  Cases  on  Criminal  Law,  by  Jerome  C.  Knowlton,  Mar- 
shall Professor   of  Law   in   the   University   of  Michigan.      1    volume  $3.00   net. 

Criminal  Procedure — Sunderland's  Cases  on  Criminal  Procedure,  by  Edson  R.  Sun- 
derland,  Professor  of  Law  in  the  University  of  Michigan  Law  School.     $4. so  net. 

Damages — Russell's  Cases,  by  Isaac  Franklin  PlUsscH,  Professor  of  Law  in  New  York 
University  Law  School.     1  volume  $4.00  net. 

Domestic  Relations — Holbrook's  Cases,  by  Evans  Holbrook,  Professor  of  Law  in  the 
University    of    Michigan. 

Equity  Pleading  and  Practice — Sunderland's  Cases  on  Equity  Pleading  and  Practice, 
by  Edson  R.  Sunderland,  Professor  in  the  University  of  Michigan  Law  School. 
$4.50  net. 

Equity  Pleading  and  Practice — Thompson's  Cases  on  Equity  Pleading  and  Practice, 
by    Bradley    M.    Thompson,    Professor    of    Law  in     University    of    Michigan.  .$3.00   net. 

Evidence — Sunderland's  Cases  on  Evidence.  By  Edson  R.  Sunderland,  Professor  in 
the  University  of  Michigan  Law  School.      $4.50  net. 

Extraordinary  Legal  Remedies — Goodnow's  Cases  on  Officers,  including  Extraordi- 
nary Legal  Remedies,  by  Frank  J.  Goodnow,  of  the  Law  Department  of  Columbia 
University.     1  volume  $5.00  net. 

International  Law — Dwyer's  Cases  Private  International  Law,  second  ed.,  by  John 
W.  Dwyer,  of  the  Law  Department,  University  of  Michigan.     $4.00  net. 

Negotiable  Instruments,  Bunker's  Cases  on  Negotiable  Instruments,  by  Robert  E. 
Bunker,   Professor   of  Law   in   the  University   of  Michigan.      1    volume  $4.00  net. 

Officers — Goodnow's  Cases  on  the  Law  of  Officers,  including  Extraordinary  Le^al 
Remedies,  by  Frank  J.  Goodnow,  of  the  Law  Department  of  Columbia  University. 
1    volume   $5.00   net. 

Partnership — Mechem's  Cases  on  Partner.ship.  by  Floyd  R.  Mechem.  Second  edition 
by  Frank  L.  Sage,  Professor  of  Law  in  the  University  of  Michigan.      1   vol.  $3.50  net. 

Partnership — Enlarged  Edition,  Mechem's  Cases,  same  as  above  with  addition  of 
Supplement.     1    volume,    third   edition,   $4.50   net. 

I'rocedure — Sunderland's   Cases    on   Procedure  7  volumes  !p4.50  each  (in  preparation). 

Property — Rood's  Cases  on  Property,  Second  Edition,  by  John  R.  Rood,  Professor  of 
Law  in  the  University  of  Michigan.     1   volume  $3.75  net. 

Suretyship — Wilson's  Cases  on  Guaranty  and  Suretyship,  by  H.  H.  Wilson,  of  the  Law 
Department   of   the   University   of   Nebraska.      1   volume  $4.00  net. 

Trial  Practice — Sunderland's  Cases  on  Trial  Practice,  by  Edson  R.  Sunderland  of 
the   Law   Department   of  the   University   of  Michigan.      $4.50   net. 

Taxation — Goodnow's  Cases  on  Taxation,  by  Frank  J.  Goodnow  of  the  Law  Depart- 
ment  of  Columbia  University.      1   volume  $.5.00   net. 

Wills — Bates,  Cases  on  Wills,  by  Henry  M.  Bates,  Dean  of  the  Law  Department, 
University  of  Michigan.      1   volume. 

CALLAGHAN    &    COMPANY 

General  Offices  CHICAGO  „  Retnil  Store 

401-409  E.  Ohio  Street  V..Xi  i  v^xxvi  vy  68  W.  Washington  Street 


LEADING  LAW  SCHOOL  TEXT  BOOKS 


.\k't^ncv-B;ivs.  A  hiin.ll.ook.  l.y  Alfml  W.  Hays.  I'ro- 
(isM.f  of  I.iiw.  Northwestern  University  School  of 
t'oniiiiene.    $1.50  net. 

.\Bency  Outlines- Mechcm  Outline.s  of  AKcncy.  by 

Floyil  K.  .Meclieni.     Professor  of  Law  in  the  University 
of  t"hicat;o.     Serond  Kilition.     S2.00  net. 

.\Kcncy— Mcchem  on  Ajrcncy.  A  treatise  liy  Kloyil  K. 
Meehem.    $5.00  net. 

.\merican   Law— Andrews'   American   Law.    Second 
Kdilion  tiy  .1.  I>.  Andrews.    2  vols.  $12.00. 
Same.  1  vol   ed..  $5.00  net. 

Bailments  and  Carriers— Goddard's  Outlines,  by  K.  C. 
(ioddaid.  Professor  of  Law  in  the  University  of  Mich- 
igan.   $2.50  net. 

Bailments  and  Carriers— Van  Zile,  by  Philip  T.  Van 
/.ilc.  iH-an  Uetroit  UolleKe  of  Law.    Second  Ed.  $5.00. 

Bankruptcy— Bays.  A  handbook  on  Debtor,  Creditor 
and  Mankruptcy,  by  A.  W.  Bays.    $1.50  net. 

BIrtckstone's  Commentaries— Cooley.  4th  Edition 
Coninientaries  on  the  Laws  of  England  by  William 
Blackstone.  with  a  translation  of  all  foreign  words 
and  phrases  appearing  in  the  text  and  very  full  and 
copious  notes  bv  Thomas  M.  Cooley.  Fourth  Edition 
by  J.  I).  Andrews.  2  volumes  $9.00  net. 
Same.  3rd  Edition  $6.00  net. 

Business  Law  and  Methods— By  George  L.  Corlis. 
I)ean  Benton  College  of  Law.    1  volume. 

Carriers— Hutchinson.  The  Law  of  Carriers  by  Robert 
Hutchinson,  Second  Ed.  by  Floyd  R.  Mecbem.    $4.00. 

Code  Pleading  Phillips.  Principles  of  Pleadings  in 
Actions  under  the  Codes  of  Civil  Procedure  by  G.  L. 
Phillips.    $4.00  net. 

Commercial  Law— Bays.  American  Commercial  Law 
Series.    9  vols.    $12.00.    Separately  per  volume  $1.50. 

Commercial  Law -Corlis.  By  George  L.  Corlis,  Dean 
Benton  College  of  Law.     1  volume. 

Common  Law  Pleading— Andrews'  Stephen's  Plead- 
ings. Hv  Hcnrv  .lohn  .Stephen.  Second  Edition  by 
.1.  1).  Andrews.     $3.50  net. 

Contracts — Anson.  Second  American  Edition,  by 
.Icroine  C.  Knowlton.  Professor  of  Law  in  the  Univer- 
sity of  Michigan.     $3.50  net. 

Contracts— Bays.    A   handbook  by  A.  VV.  Bays.    $1.50 

Contracts— Hammon.  The  General  Principles  of  Con- 
tracts, by  Louis  L.  Hammon.     S5.00  net. 

Contracts— Willis.  A  treatise  by  Hugh  E.  Willis.  Pro- 
fessor of  Law.  Univer.sity  of  .Minnesota  Law  School. 
$3.00  net. 

Corporations — Municipal  Elliott.  Second  Edition,  by 
.lohn  K.  Macv.  Professor  in  Boston  University  Law 
School.     S4.00net. 

Corporations— Bays.   A  handbook  by  A.  W.  Bays.  $1.50 

Corporations— Marshall— [Private],  A  treatise.  Se- 
cond Edition  by  William  L.  .Marshall  and  William  L 
Clark.    $5.00  net. 

Corporations— Abbott  [Public].  A  treatise  by  How- 
ard S    .Abbott.     I  volume  $4.00. 

Criminal  Law— Clark  &  Marshall— Crimes.  Second 
Edition  by  Herschell  B.  Lazell.    $5.00  net. 

Criminal   Law   and  Procedure   Outlines— Washburn. 

By  Emery  Washburn.    Third  Edition  by  Marshall  D. 
Ewell.    S2.50net. 

Damages— Willis.  A  concise  treatise  by  Hugh  E.  Willis. 
Professor  of  Law.  University  of  Minnesota.     $3.00  net. 

Dictionary— Cyclopedic  Law  Dictionary.    $5,00  net. 

Dictionary— Kinney's  Dictionary  and  Glossary.    $4.00. 

Domestic  Relations— Feck,  by  Epaphroditus  Peck,  of 
the  Law  IX'pt.  of  Vale  University. 

Domestic  Relations— Long.  A  treatise  by  Jo.seph  K. 
Long,  Prosessor  of  Law  in  Washington  and  Lee  Uni- 
versity.   $3  50  net. 


Equity  Pleading  and  Practice — Fletcher.  Equity 
Pleading  Practice  and  Forms,  by  William  Meade 
Fleti'her.    $5.00  net. 

Equity  Pleading  and  Practice- Van  Zile,  by  Philip  T 
Van"Zile.    $5.00  net. 

Evidence— Hammon.  A  treatise,  by  Louis  L.  Hammon. 
$5.00  net. 

Evidence— Hughes.  An  illustrated  treatise,  by  Thomas 
W.  Hughes.  Professor  of  Law  in  the  University  of 
Illinois.    $4.00  net. 

Evidence— Kennedy.  A  iiractical  Codification  by 
Richard  Lee  Kennedy.    S2.00  net. 

Evidence— Reynolds  Theory  of  Evidence,  by  William 
Reynolds.    $2.00  net. 

Evidence— Reynolds.  Trial  Evidence  and  Cross  E.x- 
ainination,  pocket  edition.    Limp  leather  $3.50  net. 

Insurance— Bays.  A  handbook,  by  Alfred  W.  Bays. 
$1.50  net. 

International  Law— Bordwell's  Law^s  of  War.  By  W. 
P.  Hordwell,  Professor  of  Law,  University  of  Missouri. 
$3.50  net. 

International  Law— Taylor.  The  Origin  and  Growth  of 
International  Public  Law,  by  Hannis  Taylor.  $5.50  net. 

Jurisprudence— Pattee.  The  Essential  Nature  of  Law, 
by  W.  S.  Pattee.  Dean  Law  Department,  University  of 
Minnesota.    $2.50  net. 

Legal  Ethics— Warvelle.  A  discussion  of  professional 
conduct  by  George  W.  Warvelle.    $1.50  net. 

Negotiable  Instruments— Bays.  A  handbook,  by  Alfred 
W.  Bays.    $1.50  net. 

Negotiable  Instruments— Bunker,  by  Robert  E.  Bun- 
ker. Professor  of  Law  in  the  University  of  Michigan 
Law  School.    $3.50. 

Negotiable  Instruments— Ogden,  by  J.   M.   Ogden  of 

the  Indiana  Law  School.    $4.00, 

Negotiable  Instruments— Selover.  Second  Edition  by 
Wm.  H.  Oppenheimer.    $4.00  net. 

Partnership- Bays.    A  handbook,  by  A.  W.  Bays.  $1.50 

Partnership— Meehem.  By  Floyd  R.  Meehem.  Second 
edition,  $2.50  net. 

Partnership— Shumaker,  by  Walter  A.  Shumaker.  Sec- 
ond edition.    S3. 00  net. 

Personal  Property— Childs,  by  Frank  Hall  Ghilds, 
sometime  Professor  of  Law  in  Chicago  Kent  College 
of  Law.     [In  Preparation.] 

Officers— Meehem.  Public  Offices  and  Officers,  by 
Floyd  K.  Meehem.    $5.00  net. 

Ouizzers — Walsh.  Students  Quiz  Books.  13  numbers 
Paper,  each  50  cents. 

Real  Property— Bays.  A  handbook  by  A.  W.  Bays.  $1.50 

net. 

Real  Property— Tiffany,  by  Herbert  T.  Tiffany     2  vol- 
umes.   SlO.iiO. 
Students  edition  [2  volumes  in  Ij  $7,00  net. 

Real  Property — Warvelle.  Elements,  by  George  W. 
Warvelle.    Second  edition.    $4.00  net. 

Roman  Law— Sandar's  Justinian  Institutes.  First 
American  Ed.  by  W.  E.  Hammond.    $5.00  net. 

Sales-A  handbook  by  Alfred  W.   Bays.    $1.50  net. 

Suretyship— Spencer.  A  treatise  on  Suretyship  and 
Guaranty,  by  Edward  W.  Spencer,  Dean  Milwaukee 
Law  School. 

Torts— Cooley.  A  new  Law  School  Edition,  by  John 
Lewis.    S5.00  net. 

Torts— Cooley's  Elements,  by  Thomas  M.  Cooley. 
$3.50  net. 

Trusts— Pound,  by  Roscoe  Pound,  Professor  of  Law  in 
Harvard  University. 

Wills— Rood.  Including  also  Gifts  Causa  Mortis  and  a 
summary  of  the  law  of  Descent,  Distribution  and 
Administration,  by  John  R.  Rood,  Professor  of  Law 
University  of  Michigan.    $4.00  net. 


CALLAGHAN    k    COMPANY 


General  fJffices 
401-409  E.  Ohio  Street 


CHICAGO 


Retail  Store 
68  W.  Washington  Street 


THE  ESSENTIALS  OF 


EQUITY 
PLEADING  AND  PRACTICE 

STATE  AND  FEDERAL 


WITH    ILLUSTRATIVE    FORMS    AND    ANALYTICAL    TABLES    AND 

INCLUDING   FORMS   AND   PROCEDURE   IN   THE   MASTER 's 

OFFICE.      ALSO  THE  REFORMS  AND  CHANGES 

EFFECTED  BY  THE  UNITED  STATES 

EQUITY  RULES,  IN  FORCE 

FEBRUARY  1,  1913. 


By  GEORGE  FREDERICK  RUSH 

OF  THE  CHICAGO  BAR 


CHICAGO 

CALLAGHAN  AND  COMPANY 

1913 


T 

I?I3 


Copyright  1913 

by 

CALLAGHAN  AND  COMPANY 


PREFACE  TO  THE  SECOND  EDITION 

Besides  the  essential  procedural  steps  and  pleadings 
in  the  general  state  and  federal  chancery  practice,  this 
edition  also  shows  the  numerous  changes  and  reforms 
effected  by  the  New  Federal  Equity  Rules  in  force  Feb- 
ruary 1,  1913.  Where  state  statutes  or  court  rules  are 
silent,  state  courts  usually  follow  the  federal  practice. 
Thus,  the  new  federal  rules  will  affect  the  state  practice 
also,  and  it  becomes  important  for  the  student  and  law- 
yer to  understand  these  new  federal  rules. 

This  second  edition  follows  the  plan  of  the  first.  In 
these  two  hundred  pages  of  text  and  forms,  are  gath- 
ered the  fruits  of  nearly  five  hundred  decisions.  Profit- 
able as  the  reading  of  cases  always  is,  no  student  can  be 
expected  to  study  and  digest  so  many  actual  cases  in  the 
time  given  to  the  subject,  even  in  the  best  law  schools. 
The  reading  of  cases  may  well  be  supplemented  by  a  con- 
cise text  book  which  explains  the  successive  proceedings 
and  pleadings  in  a  suit,  so  that  what  the  student  may  not 
learn  from  the  reading  of  cases  on  procedure,  he  will  find 
in  the  text  book. 

Fair  and  just  procedural  rules  are  an  indispensable 
part  of  the  administration  of  justice.  The  courts  cannot 
transact  business  without  such  rules.  Lawyers  are  sup- 
posed to  be  familiar  with  them.  The  large  number  of 
cases  reversed  for  substantial  errors  of  procedure  show 
that  this  branch  of  the  law  should  receive  its  fair  amount 
of  attention  and  study.  It  is  hoped  this  book  will  enable 
the  student  and  the  lawyer  to  gain  a  ready  knowledge  of 
the  essentials.  In  the  choice  o.f  subjects,  in  the  new  ar- 
rangement and  analyses  of  subjects,  in  the  new  and  yet 

iii 


686806 


IV  PREFACE  TO  THE  SECOND  EDITION  1 

old  classifications,  and  tables,  the  author  hopes  the  stu- 
dent and  la^^yer  will  find  a  logical,  concise,  and  simple 
exposition  of  chancery  procedure.  For  example,  the  au- 
thor's classification  of  parties  is  intended  to  simplify 
and  reconcile  all  the  numerous  and  confused  terms  found 
in  the  different  cases  and  rules.  The  author's  classifica- 
tion of  defenses  to  actions,  new  and  yet  based  on  accepted 
classifications,  is  sufficient  also  for  demurrers,  pleas,  and 
answers;  the  student  is  thus  encouraged  to  thoroughly 
master  a  single  classification  which  will  remain  of  life- 
long practical  service  to  him  in  his  profession.  The  ta- 
bles are  intended  to  aid  the  reader  in  reviewing  and 
memorizing  the  text.  The  illustrative  forms  were  care- 
fully selected  and  formulated  with  a  view  to  familiarize 
the  student  with  the  chief  pleadings  used  in  actual  prac- 
tice. 

The  author  would  be  ungrateful  if  he  did  not  here  ex- 
press his  gratitude  for  the  kind  appreciation  of  the  first 
edition  of  this  book. 

Geoege  Feederick  Rush. 

Januaey,  1913. 


PREFACE  TO  THE  FIRST  EDITION 

This  little  book  grew  out  of  a  course  of  lectures  deliv- 
ered for  several  years  at  The  John  Marshall  Law  School 
at  Chicago.  A  limited  time  spent  studying  two  hundred 
pages  of  essentials,  yields  better  results  than  the  same 
time  spent  on  one  thousand  pages,  through  which  are 
scattered  the  same  essentials,  with  eight  hundred  pages 
of  minor  details.  For  quick  mental  grasp,  students  and 
lawyers  prefer  the  small  elementary  treatise;  for  later 
study  and  reference,  the  larger  one.  No  small  text  book 
has  been  published  during  the  last  twenty  years,  and  the 
practice  has  modernized  in  many  respects.  It,  there- 
fore, seems  a  fit  time  to  produce  this  modest  book,  which 
it  is  hoped,  may  lighten  the  labors  of  students  and  law- 
yers. 

Its  aim  is  to  treat  the  main  features  briefly  but  not 
less  completely  than  in  other  works,  large  or  small,  and 
to  discuss  such  matters  of  procedure  as  frequently  arise, 
and  need  to  be  better  understood.  The  book  is  designed 
for  the  studious  lawyer  as  well  as  for  the  student.  It  sets 
forth  the  general  chancery  procedure.  State  and  Fed- 
eral. Modern  practice  in  relation  to  the  master's  office 
has  received  attention.  Illustrative  forms  are  set  forth 
to  be  read  in  connection  with  the  text. 

The  United  States  Supreme  Court's  equity  rules  are 
included  for  ready  reference.  State  statutes,  govern- 
ing chancery  practice,  usually  provide  that  matters  of 
practice  not  therein  provided  for,  shall  be  "according 
to  the  general  usage  and  practice  of  courts  of  equity." 
Thus  the  equity  rules  of  the  Federal  Supreme  Court, 
in  whole  or  in  part,  have  been  followed  by  many  of  the 


VI  PREFACE  TO  THE  FIRST  EDITION 

states,  and  liavo  found  tlioir  way  into  decisions,  State 
and  Federal,  largely  iniluencing  the  usage  and  practice 
of  the  state  equity  courts. 

Equity  rule  90  of  the  Supreme  Court  provides  that  in 
cases  not  covered  the  then  (1842)  practice  of  the  High 
Court  of  Chancery  in  England,  may  furnish  a  guide  so 
far  as  may  be  consistent  with  local  circumstances  and 
conveniences.  Therefore,  when  a  question  of  practice 
is  not  settled  by  the  usage  and  practice  of  the  state,  or  of 
the  United  States,  it  becomes  important  to  consult  the 
English  edition,  1837,  of  Daniels'  or  Smith's  Chancery 
Priictice,  which,  together  with  the  general  orders  made 
by  Lords  Cottenbam  and  Langdale  (many  of  which  were 
closely  copied  in  the  U.  S.  Equity  Rules),  are  the  best 
authorities  on  English  practice  at  the  time  the  United 
States  rules  were  adopted.  (Thomson  V.  Wooster,  114 
U.  S.  104,  112;  Evory  v.  Candee,  17  Blatchf.  200.) 

Barbour's  Chancery  Practice  seems  to  be  based  on  the 
old  New  York  chancery  rules  as  well  as  on  Daniel's  work, 
and  thus  Barbour  sets  forth  more  especially  the  New 
York  State  practice. 

The  writer  desires  to  express  his  thanks  to  his  friends 
Walter  S.  Holden  and  Edward  T.  Lee  for  their  valuable 
suggestions  and  help. 

George  Frederick  Rush. 

Chicago,  April  1,  1909. 


CONTENTS 


CHAPTER  I 

NATURE   OF  EQUITY  AND   COMMON   LAW   JURISDICTION  ;   STARE 
DECISIS;   CASE  LAW  AND   STATUTE  LAW 

[references  ARE  TO  SECTIONS] 

Origin  of  equity  courts 1 

Re-ported  cases    2 

Stare  decisis   3 

Source  and  basis  of  common  and  equity  law 4 

Nature  and  scope  of  statute  law 5 

Absolute  rights 6 

Independence  of  judicial  power  in  the  United  States  7 

Decisions  must  be  based  upon  reasons 8 

Case  law,  or  common  and  equity  law 9 

No  case  law  in  Europe 10 

Equity  rescued  the  common  law  by  broadening  tlie 

doctrine  of  stare  decisis 11 

Origin  of  the  chancellor 12 

No  jurisdiction  in  equity  when  there  is  adequate 

remedy  at  common  law 13 

Consequence  of  suing  in  the  wrong  court 14 

Auxiliary,    concurrent,    and    exclusive    jurisdiction 

of   equity 15 

Equity  jurisdiction  and  pleading  distinct  and  dif- 
ferent from  common  law 16 

Equity  procedure  different  from  that  of  common 

law  17 

vii 


viii  CONTENTS 

CHAPTER  II 

PARTIES 

[references  ar£  to  sections] 

Parties    18 

Parties  plaintilT  19 

Parties  defoiulaiit    20 

Parties,  some  thou^li  necessary  as  a  rule,  can  under 

certain  circumstance  be  dispensed  with 21 

Three  degrees  of  dispensabiUty  of  parties 22 

1.  Necessary  and  indispensable  parties 

2.  Necessary  but  dispensable  parties 

3.  Unnecessary     but     proper      (nominal     or 

formal)  parties 

Tabular  analysis  of  parties  in  equity 22A 

Creating  interest  in  a  party  to  oust  the  jurisdiction  23 

Parties  consenting  to  decree 24 

Parties  virtually  though   not   actually  represented 

b)^  other  parties 25 

Placing  party  among  plaintiffs  or  among  defendants  26 

"Wlio  are  deemed  parties  to  a  pending  suit 27 

Making  officer  of  corporation  a  party  to  obtain  an- 
swer of  corporation  under  oath 28 

Objections  as  to  parties 29 

Correcting  defects  as  to  parties 30 

Partners  should  be  named  not  as  a  firm  but  as  in- 
dividuals      31 

Diverse  citizenship  of  parties  in  federal  courts  must 

appear  from  bill 32 

CHAPTER  III 

PROCESS   AND   SUMMONS 

Process,  service  and  return 33 

Obtaining   jurisdiction   over   absent   defendants   in 
suit  in  rem  in  federal  courts 34 


CONTENTS  IX 

CHAPTER  IV 

appeaeance  in  court 

[references  are  to  sections] 

Mode  of  appearing  in  court 35 

Voluntary  appearance   36 

Effect  of  appearance 37 

Special  or  limited  appearance 38 

CHAPTER  V 

BILLS  IN  EQUITY 

The  chief  pleadings 39 

Purposes  of  written  pleadings 40 

Indefinite  pleadings  give  insufficient  notice 41 

Liberty  to  amend  is  no  excuse  for  indefinite  pleading    42 
Even  if  not  objected  to  and  if  followed  by  decree,  in- 
definite pleadings  may  be  deficient  as  notice  by  lis 

pendens,  or  of  res  adjudicata 43 

Pleadings  proposed  to  be  under  oath 44 

Definite  pleadings  required  in  equity 45 

Bill,  petition,  information 46 

When  suit  begins  as  to  statute  of  limitation,  or  so  as 

to  be  notice  by  lis  pendens 47 

Bills  original  and  bills  not  original 48 

Original  bills   49 

1.  Bill  of  complaint 

2.  Bill  of  interpleader 

3.  Bill  of  certiorari 

4.  Bill  of  discovery 

5.  Bill  to  perpetuate  testimony,  or  bill  to  ex- 

amine witnesses  de  bene  esse 

Tabular  analysis  of  original  bills 49A 

Bills  not  original 50 

1.  Supplemental  bill 

2.  Cross-bill  ; 


x  contents 

[references  are  to  sections] 

3.  Bill  to  impeach  a  decree 

4.  15111  to  suspend  a  decree 

5.  Bill  to  carry  a  decree  into  effect 

6.  Bill  of  revivor 

7.  Bill  of  review 

Bill  of  complaint 51 

The  nine  usual  parts  of  an  original  bill 52 

1.  Address  to  the  court 

2.  Introduction  of  parties 

3.  Stating  part 

4.  Confederacy  clause 

5.  Charging  part 

6.  Jurisdiction  clause 

7.  Interrogatory  part 

8.  Prayer  for  relief 

9.  Prayer  for  process 

SIGNATURE  AND  VERIFICATION 

Parts  of  bill  which  may  be  omitted 53 

CHAPTER  VI 

THE  STATING  PART  OP  A  BILL 

The  stating  part  of  a  bill 54 

Every  case  involves  the  determining  of  the  facts, 

the  law,  and  the  court's  mandate  thereon 55 

Principal  duties  of  the  trial  lawyer 56 

It  may  be  well  to  draft  the  decree  before  the  bill ...  57 
Only   ultimate   facts   should  be   pleaded   except  in 

the  charging  part  and  interrogatories 58 

Conclusions  of  law  should  not  be  alleged 59 

Exhibits  made  part  of  bill,  should  be  annexed  to  bill  60 
The  allegations  are  the  basis  of  the  proofs  and  of 

the  decree    61 

All  necessary  facts  should  be  averred  clearly  and 

positively   62 


contents  xi 

[referencEvS  are  to  sections] 

Allegations  upon  information  and  belief 63 

Allegations  of  time  and  place 64 

Allegation  by  plaintiff  of  defendant's  claims 65 

Bill  must  cover  entire  controversy 66 

Offer  to  do  equity 67 

Bill  sliould  not  impute  laches 68 

Basing  suit  on  alternative  grounds 69 

Evidential  facts  and  not  general  charges  to  allege 

fraud  or  usury  70 

Oyer  in  equity 71 

Charging  part  may  occur  in  stating  part  of  bill 72 

Multifariousness    73 

Impertinence    74 

Scandal   75 

CHAPTER  VII 

BILLS  NOT  ORIGINAL 

Supplemental  bills 76 

Bills  of  revivor    77 

Bills  of  review    78 

Bill  of  review  and  petition  for  re-hearing  compared  79 

Cross-bill 80 

Cross-bill  must  be  germane 81 

Cross-bill  to  aver  defenses  arising  after  bill  filed. . .  82 

Cross-bill  unnecessary  if  answer  attains  relief 83 

Defendants  to  cross-bill 84 

Form  of  cross-bill 85 

Pleading  to  cross-bill 86 

Bills  to  impeach,  or  to  suspend,  or  to  carry  into 

effect  a  decree 87 

Tabular  analysis  of  bills  not  original 87A 

CHAPTER  VIII 

DEMURRERS 

Defenses  and  defen^ve  pleadings 88 

Nature  of  a  demurrer 89 


Xii  CONTENTS 

fREFraiENCE8   ARE   TO    SECTIONS] 

T}W)ular  analysis  of  dcfonsos  to  action 89A 

DoaniiiTor  raises  question  of  !a\v,  never  of  fact 90 

Demurrer  in  etiuity  aj)i)lies  only  to  the  bill 91 

Denuirrcr  defined    92 

Function  or  use  of  demurrer 93 

Forms   of   demurrer 94 

General  demurrer   95 

Special   demurrer    96 

Distinction  between  general  and  special  demurrer. .  96A 

Oral  demurrer  (ore  tenus) 9GB 

Advisal)le  to  file  general  and  special  demurrer 97 

Grounds  of  demurrer 98 

General  grounds  of  defense  easily  suggest  particu- 
lar grounds  99 

"What  is  conceded  upon  argument  of  demurrer 100 

Tabular  analysis  of  different  grounds  of  demurrer.lOOA 

A  "speaking"  demurrer 101 

How  demurrer  may  be  waived 102 

Effect  of  sustaining  a  demurrer 103 

Effect  of  overrulin":  a  demurrer 104 


'o 


CHAPTER  IX 


PLEAS 


Plea  defined   105 

Plea  and  demurrer  compared,  function  of  a  plea. . .  106 
Forms  of  pleas 107 

1.  Affirmative  pleas 

2.  Negative  pleas 

3.  Anomalous  pleas 

Pleas  supported  by  answer 108 

Answer  in  support  should  be  limited 109 

Grounds  of  pleas 109A 

Pleas  to  the  jurisdiction  must  give  a  better  juris- 
diction     110 

Tabular  analysis  of  different  grounds  of  pleas llOA 


CONTENTS  Xlli 

[references  are  to  sections] 

Separate  plea  abolished  in  federal  court Ill 

Testing  the  legal  sufficiency  of  a  plea 112 

Trial  of  case  upon  plea  and  replication 113 

Pleas  verified   114 

Plea  may  be  waived 115 

CHAPTER  X 

Disclaimer 

Disclaimer   116 

CHAPTER  XI 

answer 

Answer  one  of  the  three  modes  of  defense 117 

Twofold  nature  of  answer,  to  give  discovery  and  to 

set  forth  defenses 118 

If  answer  does  not  answer  an  allegation  of  the  bill, 
such  allegation  is  deemed  to  be  denied  in  some 
jurisdictions,  and  to  be  confessed  in  other  juris- 
dictions     119 

When  an  answer  is  discovery  and  evidence,   and 

when  it  is  mere  pleading 120 

Answer  must  meet  every  allegation  of  the  bill 121 

Complainant  may  compel  full  answer 122 

Defendant  not  required  to  answer  certain  allega- 
tions       123 

Answer  should  avoid  pleading  conclusions  of  law. .  124 
Averments  of  answer  and  proofs  of  defendant  must 

correspond 125 

To  reserve  benefit  of  demurrer  answer  must  specify 

the  ground  of  demurrer  as  a  defense 126 

No  affirmative  relief  upon  answer  except  in  federal 

court    127 

Testing  the  legal  sufficiency  of  an  answer 128 

Exceptions  to  an  answer 129 


Xiv  CONTENTS 

[references  are  tu  sections] 

"Waiviiii^  jwiswiT 130 

Tabular  review  of  defonsive  pleadings 131 

CHAPTER  XII 

REPLICATION 

Dofinition    132 

ElTec't  of  omitting  roplication 133 

Replication  brings  cause  to  issue 134 

Amendments  in  some  states  in  lieu  of  special  repli- 
cations      435 

Wlicii  filing  of  replication  is  waived 136 

Replication  need  not  be  signed 137 

CHAPTER  Xm 

AMENDMENTS,    SUPPLEMENTAL    PLEADINGS,    AND    INTERROGA- 
TORIES 

Nature  of  amendments 138 

Amondmonts  should  not  make  different  case 139 

Amendments  to  meet  new  facts  in  the  answer 140 

"Wlion  amendments  may  be  made 141 

Leave  of  court  must  be  obtained  to  amend. ........   142 

Method  of  amending  bill 143 

Amending  the  answer 144 

New  answer  to  amended  bill 145 

A  material  amendment  to  bill  vacates  all  default 

orders   146 

Amendment  of  bill  to  avoid  variance  in  the  proofs. .   147 

Amendment  by  supplemental  bill 148 

Bill  of  particulars,  or  better  statement,  in  federal 

f ourts    148A 

Interrogatories  and  production  of  documents  in  fed- 
eral courts    148B 


CONTENTS  XV 

CHAPTER  XIV 

evidence  in  chancery 

[references  are  to  sections] 

Evidence  is  limited  by  the  pleadings 149 

Admissions  and  denials,  by  the  pleadings,  by  de- 
faults, by  stipulation 150 

1.  Admissions    and   denials   implied   and    ex- 

pressed by  the  pleadings 

By  the  nature  of  the  pleading 
By  the  words  of  the  pleading 
But  no  admissions  permitted  against 
infants  or  persons  non-compos 

2.  Confessions  by  default 

In  appearing 
In  filing  any  pleading 
But  no  confession  by  default  in  the  case 
of  infants  or  persons  non-compos 

3.  Admissions  by  express  stipulation 

Taking  testimony    151 

Preserving  evidence  of  record 152 

Even   rejected    testimony    should    show    upon    the 

record   153 

Forms  in  which  evidence  in  equity  is  preserved  of 

record   154 

1.  Judges  certificate  of  evidence 

2.  Master's  report  or  certificate  of  evidence 

3.  Depositions 

4.  Affidavits 

If  evidence  not  preserved  recitals  in  decree  may 
serve  the  purpose  instead 155 

Evidence  of  record  not  necessary  to  support  pro 
confesso  decrees,  or  decrees  dismissing  a  bill  for 
want  of  equity 156 

Exhibits  omitted  before  master  under  some  circum- 
stances may  be  offered  in  court 157 


XV i  CONTENTS 

[heffhiences  are  to  sections] 

Ohjoctioiif;  ami  rulings  upon  evidence;  in  chancery.  .   158 

Oltji'ctions  should  ho  made  in  time  to  afford  correc- 
tion       159 

Exceptions  as  a  rule  unnecessary  upon  rulings  upon 
objections   to  evidence 160 

To  save  an  objection  for  review  it  should  be  insisted 
upon   161 

Judges  mid  masters  should  express  their  rulings 
upon   the  record 162 

AVhen  objections  to  master's  rulings  on  evidence, 
are  brought  before  the  court  for  review 163 

CHAPTER  XV 

MOTIONS   OF   COURSE   AND   MOTIONS   NOT   OF   COURSE 

Interlocutor}'  raotioivs  or  petitions 164 

Motions  of  course  and  motions  not  of  course 165 

CHAPTER  XVI 

DISMISS.VL  OF  BILL 

Dismissals  by  plaintiff 166 

Dismissals  by  defendant 167 

Dismissals  on  court's  own  motion 168 

Dismissal  after  decree 169 

CHAPTER  XVII 
the  hearing  in  court 

Procedure  upon  hearing  for  decree 170 

Abstract  of  evidence  specially  made  for  the  court  171 
Petition  at  hearing  for  leave  to  amend  or  to  present 
new  evidence   172 

CHAPTER  XVIII 

decrees  and  decretal  orders 

Counsel  prepares  the  decree 173 

Counsel  serves  copy  upon  opposite  solicitor 174 


contents  xvu 

[references  are  to  sections] 

Final  and  interlocutory  decrees 175 

Final  decree 176 

Interlocutory  decree   177 

Decree  in  part  final,  in  part  interlocutory 178 

Pro  confesso  or  default  decree 179 

Eule  da;ys  for  defaults 180 

Complainant  may  take  default  deco'ee  or  compel  an- 
swer     181 

Default  decree  should  find  facts  as  to  service 182 

No  defaults  or  confessions  against  infants  or  per- 
sons non-compos   183 

Effect  of  order  pro  confesso 184 

Power  of  court  to  vacate  decree  pro  confesso 185 

Enforcement  of  decrees  by  attachment  or  seques- 
tration    186 

CHAPTER  XIX 

EXAMINERS  AND  SPECIAL  COMMISSIONERS 

Examiner  187 

Special  commissioners 188 

CHAPTER  XX 

MASTERS  IN  CHANCERY 

Nature  of  the  office 189 

■Duties  of  master 190 

.Master's  acts  are  limited  by  statute,  court  rules,  and 

the  order  of  reference 191 

References  are  subject  to  the  court's  discretion  ex- 
cept cases  of  accounting 192 

In  the  federal  courts  references  are  exceptional 

Duty  aiid  power  of  master  in  federal  courts 193 

Production  of  books  and  writings  before  master 194 

.Production  under  subpoena  duces  tecum,  or  under 
notice    195 


Xviii  CONTENTS 

[references  are  to  sections] 
Master's  discrctiou  to  order  production  is  limited  196 
Master  may  not  permit  withdrawal  of  exhibits  from 

the  record    197 

Evidence  before  the  master 198 

Nature  of  hearing  before  master 199 

Notice  of  hearing  before  master 200 

Reference  to  state  account ,   201 

The  master's  report 202 

Form  and  sufficiency  of  report 203 

The  master  should  find   as  to   each  ultimate  fact 

pleaded  204 

Master  must  draw  up  his  own  report 205 

But  counsel  may  file  briefs  requesting  particular 

findings    206 

Form  of  brief  before  master 207 

Objection  that  certain  findings  were  omitted 208 

^fethod  of  objecting  to  master's  report 209 

Exceptions  in  court  to  master's  report 210 

Court's  ruling  upon  exceptions  should  be  specific. . .   211 
No  exception  necessary  to  master's  conclusions  of 

law 212 

Court  may  make  findings  additional  to  those  in  mas- 
ter 's  report  213 

Action  of  court  on  report 214 

Confirmation  of  master's  report 215 

CHAPTER  XXI  . 

INJUNCTIONS 

Definition    216 

Temporary  injunction    217 

Perpetual  injunction   218 

Restraining  orders  in  federal  courts 219 

Preliminary  injunctions  and  temporary  restraining 

ordors  in  federal  courts 220 

Bill  must   show   existing  right  and  its  impending 
violation   221 


CONTENTS  XIX 

CHAPTER  XXII 

receivers 
[references  are  to  sections] 

Definition   222 

Situs  of  property 223 

Object  and  grounds  of  appointment 224 

No  receiver  when  there  is  adequate  remedy  at  law . .  225 

Receiver's  control  over  property 226 

Bond  in  lieu  of  receiver 227 

Bonds  to  be  furnished  by  receiver  and  by  party  ap- 
plying      228 

Court  reluctant  to  appoint  receiver  for  a  corpora- 
tion      229 

Obtain  leave  to  sue  receiver 230 

CHAPTER  XXIII 

FORMS 

APPENDIX 

The  new  federal  equity  rules.    In  force  February  1, 
1913   209 


EQUITY  PLEADING  AND  PRACTICE 


CHAPTER  I 

Nature  of  Equity  and  Common  Law  Jurisdiction;  Stare 
Decisis;  Case  Law  and  Statute  Law 

§  1.  The  ancient  rigidity  of  common  law  decisions, 
caused  the  invention  of  the  equity  court.  The  pronounce- 
ments, decisions,  of  the  ancient  common-law  courts  be- 
came so  arbitrary,  fixed,  and  narrow,  were  so  strictly 
adhered  to  by  the  ancient  common  law  judges,  that  a 
large  number  of  frauds  and  wrongs  could  not  be  ade- 
quately remedied.  The  common  law  judges  had  come  to 
regard  their  judicial  decisions  as  establishing  the  letter 
of  the  principles  of  law,  instead  of  being  merely  different 
judicial  expressions  on  principles  established  outside 
their  decisions,  and  in  the  common  conscience  and  cus- 
toms of  the  people.  To  remedy  the  inflexibility  of  the 
then  common  law,  the  King  established  himself  as  a  new 
court  of  extraordinary  powers,  which  became  known  as 
a  court  of  *'the  King's  Conscience,"  a  ''Court  of 
"Equity;"  which  concerned  itself  more  about  substance, 
reason,  than  about  the  letter  of  decisions,  more  about  the 
true  intent  and  effect  of  acts  and  conduct,  than  about 
the  form  of  acts,  however  disguised  as  lawful.  This  new 
court,  while  respecting  the  common  law  precedents,  did 
not  feel  bound  by  them  to  the  extent  of  withholding  the 
justice  demanded  by  the  peculiar  facts  of  any  case. 

In  time  this  new  court,  by  its  body  of  decisions,  de- 
veloped its  own  rules  and  precedents,  and  there  came  to 
be  ''reports"  of  equity  cases,  as  there  were  "reports"  of 


2  EQUITY  PLEADING  AliD  PRACTICE 

law  cases.  These  equity  precedeiits,  in  a  measure,  have 
also  become  somewhat  fixed;  but  the  historical  origin  and 
purpose  of  this  court,  tends  to  prevent  its  precedents 
from  falling  into  the  ancient  rigidity  of  the  common  law. 
"Circumstances  alter  cases,"  is  a  proverb  of  true  experi- 
ence. If  decisions  are  regarded  as  merely  actual  in- 
stances where  certain  unwritten  rules  of  conduct  are 
appUed,  if  they  are  regarded  as  tentative  expressions 
instead  of  as  final  expressions,  then  judicial  decisions 
become  an  aid,  and  seldom  a  hindrance,  in  the  practical 
administration  of  justice. 

§  2.  Cases  illustrate,  but  do  not  absolutely  make,  the 
common  law.  Principles,  fundamentals,  of  law  (of  estab- 
lished right  conduct,  unwritten  law),  are  simple,  are  few, 
an<l  are  (piite  fixed;  but  the  expressions,  the  applications 
of  these  fundamental  rules,  namely  decisions,  will  be  as 
numerous  as  the  cases,  and  being  fallible  human  expres- 
sions, they  can  not  be  entirely  final  or  fixed.  Lord  Mans- 
field said:  "The  law  does  not  consist  of  particular  cases, 
but  of  general  principles,  which  are  illustrated  and  ex- 
plained by  those  cases."  This  means  that  though  we 
loosely  speak  of  decisions  as  constituting  the  common 
and  equity  law,  it  would  be  more  exact  to  speak  of  deci- 
sions as  only  illustrating,  applying,  interpreting,  that 
law,  which  really  consists  of  unwritten  principles  pre- 
existing and  established  in  the  common  conscience  and 
usages  of  the  people. 

§3.  Stare  decisis;  decisions  contain  authoritative  ex- 
pressions upon  the  common  and  equity  law.  The  same 
facts,  mean  the  same  cases,  and  ordinarily  should  mean 
the  same  decisions.  Respect  for  prior  decisions,  pre- 
vents arbitrariness,  and  compels  lawyers  and  judges  to 
scrutinize  the  reasoning  of  prior  similar  cases.  Prior 
decisions  bring  before  each  judge  the  light,  the  reason- 
ing, and  the  learning  of  preceding  ages.  Certainty,  sta- 
bility, consistency,  in  correct  decisions,  are  necessary  to 


NATURE  OF  EQUITY   AND   COMMON   LAW   JURISDICTION  3 

any  reliable  and  just  system  of  law,  and  therefore  "a 
correct  decision  should  stand  and  be  followed."  But 
judicial  expressions  are  not  infallible ;  and  therefore  the 
only  fixity  there  can  be  in  English  and  American  equity 
and  common  law  decisions,  is,  that  a  decision,  of  a  court 
of  last  resort,  based  upon  just  and  sufiQcient  reasons  or 
grounds,  should  stand  as  expressing  the  law  to  govern 
like  eases,  until  that  decision  be  modified  or  enlarged 
by  a  later  one,  to  accord  with  controlling  and  better  rea- 
sons.^ 

The  very  method  of  common  and  equity  law,  the  lib- 
erty of  the  court  to  base  its  decision  always  upon  true 
reason  or  principle,  and  not  necessarily  upon  preceding 
cases  or  expressions,  makes  its  decisions  all  the  more 
certain,  reliable,  worthy,  and  authoritative. 

''Let  a  prior  correct  decision  stand  and  be  followed"  is 
what  is  meant  by  the  doctrine  known  as  '^ stare  decisis:" 
Stare  decisis  makes  the  ''case  law,"  in  other  words  "the 
common  law ' '  and  ' '  equity  law. ' '  Only  by  ' '  precedents, ' ' 
is  the  right  kind  of  certainty  and  responsibility  intro- 
duced into  the  administration  of  our  law.  "If  a  for- 
mer decision  is  manifestly  unjust,  it  is  not  law, ' '  ^  and 
such  a  prior  decision  may  be  departed  from  by  other 
judges,  who  usually  point  out  the  error  in  their  opinion. 
Common  and  equity  law,  is  "judge-made  law,"  only  in 
the  sense  that  in  judicial  decisions  especially,  are  to  be 
found  the  more  authoritative  discussions  and  expres- 
sions by  the  judges  themselves,  upon  many  of  the  com- 
monly accepted  principles  of  correct  human  conduct. 

The  doctrine  of  stare  decisis  applies  with  special  force 
where  a  line  of  common  law  decisions  has  established  cer- 
tain principles  of  law  as  the  basic  rules  of  property  titles 
or  of  contractual  obligations.  It  is  evident  that  a  con- 
trary decision,  expressing  a  contrary  principle  as  being 
the  law,  would  unsettle  titles,  and  impair  the  obliga- 

1 — Blackstone  70;  Dodge  v.  Cole,         2 — Blackstone     70;      Gillham     v. 
97  111,  361.  Maaison  K.  E.  Co.,  49  111.  484. 


4  EQUITY  riJilADING  AND  PRACTICE 

tioiis  of  contracts,  beyond  those  in  controversy  before 
the  court,  and  would  thus  have  harmful  retroactive  con- 
sequences unless  such  contrary  decision  is  one  which  in- 
terprets a  statute.""  If  a  common  law  rule  of  property 
is  to  be  overruled  it  should  be  done  by  statute.  A  stat- 
ute can  nut  be  retroactive. 

§  4,  Source  and  basis  of  common  law.  A  judge  does 
not  protend  to  create  a  principle  (fundamental  rule)  of 
law.  It  is  his  official  function,  by  his  opinion,  to  endeavor 
to  show  by  what  existing  irrinciple  of  right,  a  particular 
set  of  facts  is  governed.  Our  common  law,  like  the  jus 
gentium  of  the  Romans,  and  like  the  law  of  other  nations, 
was  not,  and,  upon  the  whole,  cannot  be  made  or  unmade, 
by  the  enactment  or  pronouncement  of  any  man,  or  aggre- 
gate of  men,  however  powerful.^  It  consists  of  those  prin- 
cii)les  (fundamentals),  and  rules  of  action,  applicable  to 
the  government  and  security  of  persons  and  of  property, 
which  do  not  rest  for  their  authority  upon  any  statute.* 
Our  common  and  equity  law  is  an  inherent  part,  and  an 
historic  expression,  of  the  life,  customs  and  practices  of 
our  people.  Courts  cannot  originate  customs  or  usages, 
they  can  only  recognize  and  give  expression  to  such 
customs.  Neither  courts  nor  legislatures  enact  the  com- 
mon or  equity  law.  It  is  self-made,  and  upon  the  whole,  is 
a  free  and  natural  evolution.^    In  instances  where  courts 

2a-Ha8kett   v.    Maxey    134    Ind.  "True   law   is   right  reason    cod- 

^^'^'  formable    to    nature,    universal,    un- 

3— James  C.  Carter,  "Law,  Its  changeable,  eternal,  whose  corn- 
Origin,  Growth  and  Function."  mands  urge  us  to  duty,   and  whose 

4—1  Kent  492.  prohibitions    restrain   us   from    evil. 

5— James    C.    Carter,    "Law,    Its  Whether   it  enjoins   or   forbids,   the 

Origin,     Growth     and     Function;"  good    respect    its    injunctions,    and 

George    H.     Smith,    "Elements     of  the    wicked    treat    them   with   indif- 

Right  and  Law;"  R.  Floyd  Clarke,  ference.      This   law   cannot   be    con- 

"The  Science  of  Law;"  W.  S.  Pat-  tradicted  by  any  other  law,  and  is 

tee,     "The     Essential     Nature     of  not   liable   either   to    derogation   or 

Law ;  "  E.  L.  Campbell,  ' '  Science  of  abrogation.     Neither  the  senate  nor 

Law;"    Herbert    Spencer,    "Social  the  people  can  give  us  any  dispen- 

Statics,"  Ed.  1897  pp.  376  to  4n.  sation  for  not  obeying  this  universal 


NATURE   OF  EQUITY  AND   COMMON   LAW   JURISDICTION  5 

have  repeatedly  adhered  to  some  precedent  and  outworn 
custom,  which  has  become  unfair  as  judged  by  present 
customs,  statutes  are  occasionally  enacted  which  abro- 
gate or  modify  such  rules  of  the  common  law.  Because  of 
its  basis  upon  the  true  customs,  principles,  of  life  and  of 
conduct,  and  because  of  its  case-method  of  expression,  our 
common  and  equity  laiv  is  aUvays  free  to  re-express  itself 
more  correctly  in  any  new  case,  in  order  better  to  accord 
ivith  truth  and  reason.  Common  and  equity  law,  is  the 
free,  unenacted,  ''unwritten"  law,  of  a  free  people;  it  de- 
velops itself;^  it  is  a  true  and  natural  system  of  law.  It 
compares  with  enacted  law  (statutes  or  statutory  codes, 
attempting  to  cover  the  whole  or  a  large  part  of  the  sub- 
ject of  private  rights),  as  experience  and  fact  compare 
with  experiment  and  belief.  In  the  one,  the  existing  com- 
mon conscience  and  customs,  prescribe  conduct;  in  the 
other,  the  commandments  of  a  legislature,  or  other  law 
giver,  prescribe  conduct.  Both  case  law  and  statute  law 
are  enforced  by  the  state,  and  hence  are  called  impera- 
tive, or  positive  law ;  as  distinct  from  other  ethical  prin- 
ciples or  laws,  not  enforced  by  courts  and  state.  It  is 
desired  here  to  call  the  student's  attention  to  the  fact 
that  common  law  or  case  law,  is  accepted  as  law,  not  by 
the  edict  of  judge  or  legislature,  but  by  the  common 
recognition  of  its  justice  and  reasonableness  by  other 
judges;  while  statute  law,  is  law  simply  because  it  is 
imperatively  commanded  by  the  power  of  the  state. 


law  of  justice.     It  needs  no   other  And  he  who  does  not  obey  it  flies 

expositor  and   interpreter   than    our  from  himself,  and  does  violence  to 

own  conscience.     It  is  not  one  thing  the   very   nature   of   man.      And   by 

at    Rome    and    another    at    Athens;  so  doing  he  will  endure  the  severest 

one  thing  today  and  another  tomor-  penalties  even  if  he  avoid  the  other 

row;    but   in   all   times   and  nations  evils    which    are    usually    accounted 

this     universal     law     must     forever  punishment." — Cicero,  On  the  Com- 

reigD,  eternal  and  imperishable.     It  monwealth,  Book  III,  See.  22. 

is  the  sovereign  master  and  emperor  .  6 — E.  Floyd  Clarke  "The  Science 

of  all  beings.     God  Himself  is  its  of  Law." 
author,  its  promulgator,  its    enforcer. 


6  EQUITY  PLEADING  AND  PRACTICE 

§  5.  Nature  and  scope  of  statute  law.  Statutes  are 
not  iiec'ossarily  in  accordance  with  fundamental  truths, 
facts,  principles;  they  are  concrete  commands,  enacted 
by  fallible  men.  They  may  be  arbitrary  and  not  based 
upon  true  reasons,  true  facts.  Unlike  common  law  de- 
cisions, statutes  are  not  tentatively  expressed,  subject,  to 
be  more  correctly  expressed  by  later  decisions.  Human 
expressions  are  seldom  exact,  adequate,  or  properly  lim- 
ited. The  expression  of  enacted  law  stands  more  rigid 
and  fixed  by  its  letter,  because  the  language  of  a  statute 
can  be  changed  only  by  legislative  amendment,  and  at  a 
place  where  those  whose  rights  are  affected,  cannot  be 
heard.  Statutory  language  cannot  be  corrected  by  courts, 
though  actual  cases  may  plainly  show  the  language  is  too 
broad  for  what  was  probably  intended. 

Administrative  statutes,  setting  up,  not  rights  them- 
selves, but  rather  the  various  governmental  agencies, 
procedures,  and  remedies,  for  the  promotion  and  protec- 
tion of  rights,  are  necessary  and  proper  subjects  for  the 
legislature.  But  statutes  cannot  so  well  as  courts,  go 
beyond  this  field,  and  attempt  to  define  and  apply  the  in- 
finite principles  of  human  justice,  or  rights."^  Particular 
future  riglits,  depend  upon  the  unforeseeable  combina- 
tion of  facts  in  each  future  case.  Pronouncing  what  is 
right  or  wrong  under  the  varying  facts  of  different  cases, 
is  best  done  by  courts,  the  governmental  agency  estab- 
lished by  the  people  for  the  purpose.^  If  the  legislature, 
or  code-makers,  could  foresee  every  combination  of  facts 
that  may  in  future  occur,  have  them  elucidated  by  oppos- 
ing parties,  and  have  them  reasoned  and  pronounced 
upon  by  impartial  experts,  then  their  pronouncements, 
embodied  in  statutes  or  codes,  might  be  something  like 
the  decisions  of  equity  and  common  law  judges ;  and  they 

7— "Our  statutes  leave  practically  8— Blackstone  61. 

untouchefl  that  body  of  our  laws 
wbich  deals  with  justice"  (JameB 
C.  Carter). 


NATURE  OF  EQUITY   AND   COMMON   LAW   JURISDICTION  7 

would  be  about  as  voluminous.  Administrative  law,  is 
proper  for  the  legislature;  the  law  of  private  rights,  is 
more  properly  for  the  court,  the  only  place  where,  in  the 
course  of  time,  every  conceivable  right  is  earnestly  as- 
serted, strongly  attacked,  fully  defended,  fully  discussed, 
and  impartially  decided. 

§  6.  Certain  great  classes  of  rights,  ante-date  and  con- 
dition governments,  cases,  statutes,  and  constitutions,  and 
in  themselves  constitute  principles  of  law.^"  ''All  rights 
are  vested  in  persons;  are  over  persons  or  things;  are 
originated,  terminated,  or  varied  only  hy  events;  and  are 
ascertained  hy  principles  deduced  from  the  nature  of  per- 
sons and  things,  and  the  relations  between  them."^  Cer- 
tain large  classes  of  human  rights,  such  as  the  rights  of 
personal  security,  liberty,  and  property,  are  indispensable 
conditions,  facts,  and  thus  are  causes,  are  laws,  of  man's 
existence  and  nature,  as  a  separate  independent  being, 
of  a  separate  family,  of  a  separate  community  or  nation , 
whose  individual,  family,  and  community  independence 
and  interests,  are  best  promoted  and  protected  by  union 
and  association  with  others  like  himself,  by  a  society  of 
free  individuals,  by  as  much  of  a  socialism  as  is  consis- 
tent with  the  freedom,  independence,  of  individuals. 
Self  preservation  means  self  reliance,  individual  prov- 
idence and  independence,  and  only  the  sweat  of  each 
man's  brow  working  for  all  that  is  precious  to  him,  can 
make  a  socialism  which  is  true  to  nature  and  life.  This 
is  the  law  of  our  social  life. 

These  and  other  "inherent"  rights,  principles,  laws,  are 
not  merely  suppositions,  ideas,  or  theories,  tolerated  and 
accepted  as  right  or  true,  by  a  particular  generation,  or 
majority,  or  government.  It  is  the  very  nature  and  un- 
changing impulse  of  provident,  independent,  and  family- 
loving  man,  to  make  secure  his  life,  his  liberty  and  his 

8a — See    authorities    cited    under  9 — George  H.  Smith,  Elements  of 

note  5,  ante.  Eight  and  Law,  p.  60. 


8  EQUITY  PLEADING  AND  PRACTICE 

property  or  ])rovidence;  this  means  bis  independence, 
majvcs  possible  bis  individual  life.  Government  or  no 
government,  each  man  always  rudely  struggled  to  enforce 
tbese  rigbts  witb  bis  own  rigbt  arm  if  necessary.  In 
history  throughout  the  generations,  tbese  great  rigbts  re- 
assert and  vindicate  tberaselves  as  true  facts,  laws,  bow- 
ever  often  they  may  be  "crushed  to  earth"  for  a  time  by 
the  force  of  temporary  majority  opinion,  or  by  physical 
power.  Still  it  behooves  each  generation  to  be  vigilant 
and  uphold  their  rights.  For  these  reasons  such  certain 
rigbts  are  held  in  reverence,  as  being  "inherent"  and 
"inalienable."  By  their  own  rational  force,  as  actual 
natural  facts,  or  laws,  or  rights,  or  truths,  they  persist  as 
"principles,"  and  tend  to  check  the  arbitrary  enactments 
of  despotism  or  mere  power.  The  English  "Magna 
Charta,"  likewise  the  American  "Bill  of  Rights,"  is  writ- 
ten and  enforced  by  human  nature  itself,  and  not  neces- 
sarily by  statutes,  or  constitutions,  except  for  the  pur- 
pose of  extraordinary  promulgation.  They  are  the  "pre- 
scriptive" constitutions. 

§  7.  Only  in  the  United  States,  through  the  separation 
and  independence  of  the  judicial  power,  is  law,  justice, 
established  as  supreme  and  free.  In  the  United  States, 
tilt'  judicial  power  is  established  by  the  people  as  a 
power  independent  of  the  executive,  and  independent  of 
the  legislative,  so  that  the  courts  may  the  more  faithfully 
and  independently  act  as  the  representatives,  the  tri- 
bunes, the  guardians,  the  spokesmen,  the  defenders,  of 
the  true  liberties,  rigbts,  laws,  of  the  people,  and  even 
of  a  minority  of  the  people.  Montesquieu  said  "There 
is  no  liberty,  if  there  be  no  separation  between  the  judi- 
cial power,  and  the  legislative  and  executive  power." 
Only  in  the  United  States  are  tbese  powers  separated  as 
clearly  as  is  possible.  In  America  it  is  "to  secure  these 
rights  and  the  blessings  of  liberty,"  and  "to  establish 


NATURE    OF   EQUITY    AND    COMMON    LAW   JURISDICTION  9 

justice,"  that  governments  are  established."^  Great 
classes  of  human  rights  are  broadly  recognized  in  ''Bills 
of  Rights."  ^^  The  sober,  responsible  judgment  of  the 
people,  resides  in  their  courts  and  is  expressed  in  the 
* '  Case  Law. ' '  Their  rights  and  liberties,  are  the  aim  and 
end  of  their  governments,  and  can  be  protected  only  by 
their  courts.  Our  courts  are  not  sovereign  and  supreme ; 
our  legislatures  are  not  supreme;  only  fundamental 
principles  of  law  are  supreme.  ^^'^  In  America  neither 
rulers  nor  majorities  can  be  trusted  to  be  supreme,  only 
reason  and  right,  only  law,  can  be  trusted.  The  suprem- 
acy of  law  and  not  of  men  is  the  lasting  foundation  of 
American  liberty.^^^ 

For  man's  intellectual  guidance,  and  for  the  peace  and 
good  order  of  society,  it  is  necessary  that  some  author- 
ized agency,  like  the  courts,  through  decisions,  interpret, 
express,  and  formulate  in  language,  as  accurately  as 
possible  from  time  to  time,  according  to  their  light  of 
reason,  those  statutes,  customs  and  existing  principles  of 
right,  which  in  the  aggregate  constitute  the  law  of  our 
land.  To  be  free  from  improper  influences,  courts  must 
be  an  independent  and  separate  power  of  government. 
Their  decisions  are  made  only  in  actual  cases  brought  by 
aggrieved  suitors,  and  the  force  and  permanency  of  their 
decisions  depend  upon  the  reasons  upon  which  they  are 
based. 

§  8.  Decisions  are  based  upon  reasons,  and  not  neces- 
sarily upon  other  decisions.  The  words  of  a  court  decis- 
ion express  the  law,  only  so  far  as  they  are  based  upon, 
or  express,  reasons.  Reasons  are  fundamental  truths, 
groiauls,  facts;  they  are  definite  things,  not  mere  words. 
Reasoning  is  thinging  (thinking),  putting  things  to- 
gether,  viewing   and   mentioning   the    actual    facts    or 

10 — Declaration  of  Independence,  Ila — 'Herbert  Spencer,  Social  Stat- 

Constitutions   of   the   United   States  ics,  pp.  376  to  411. 

and  of  the  various  States.  lib — Francis    Lieber,    Civil    Lib- 

11— Bailey  v.  People,  190  111.  33.  erty. 


10  EQLITY  PLEADING  AND  PRACTICE 

grounds,  instead  of  viewing  merely  beliefs,  assumptions 
of  fact,  or  the  words  of  some  legal  or  political  doctrine, 
however  plausible  and  familiar.  As  Sir  Henry  Maine 
says  of  law,  "It  is  better  to  walk  by  sight  than  to  walk 
by  faitJi."  Reasons  are  the  basic  or  constituent  facts, 
grounds,  seen  by  the  mind.  Leges  non  verbis  sed  rebus 
sunt  impositae;  laws  are  based  not  upon  words,  but 
upon  actually  existing  things,^-  facts,  truths,  reasons. 
The  facts  of  the  universe,  are  the  laws  of  the  universe. 
The  facts  of  human  nature  are  also  laws  of  human  na- 
ture. Facts,  usages,  are  conditions,  limitations,  laws, 
in  the  affairs  of  men.  ** Reason  (proceeding  by  funda- 
mental truths),  is  tlie  highest  law,"  says  Cicero. 
"What  is  not  reason  is  not  law,"  says  Blackstone. 
"He  knows  not  the  law,  who  knows  not  the  reason 
thereof,"  says  Coke.  The  vast  majority  of  judicial  de- 
cisions, either  express  good  reasons,  or  are  based  upon 
good  reasons  and  therefore  are  followed.  The  occasional 
unsound  decisions  in  the  course  of  time  are  not  followed 
by  other  courts,  and  thus  are  reversed. 

§9.  "Case  law."  This  is  the  much  misunderstood 
"Case  Law,"  or  common  and  equity  law;  free  as  truth 
itself  to  grow;  a  treasure  house  of  fundamental  truths; 
its  sound  precedents  ever  correcting,  improving,  and  en- 
riching the  language  of  the  law;  its  unsound  precedents 
pruned  away  in  time.  Case-Law  tends  to  reasonable,  in- 
stead of  arbitrary  decisions.  It  means  a  decision  in  a 
case  should  state  the  facts,  grow  out  of  the  facts,  and 
agree  with  the  facts,  like  other  correct  decisions  that  may 
have  preceded.  It  does  not  mean,  that  a  new  case  must 
always  be  based  upon  some  preceding  case,  because  a 
preceding  case  may  not  exist.  The  principles  of  the  com- 
mon and  equity  law,  pre-exist,  and  can  be  applied  or 
expressed  in  any  new  case  for  the  first  time.^^'  Whether 
or  not  a  prior  similar  case  exists,  the  lawyers  and  the 

12— Burrill  Law  Diet.  12a— Piper  v.  Hoard,  107  N.  Y.  73. 


NATURE  OP  EQUITY   AND   COMMON    LAW   JURISDICTION  11 

judge,  are  free  to  reason  afresh  upon  the  facts  of  any 
case  on  trial,  as  well  as  to  receive  additional  light  from 
prior  similar  cases,  if  any  exist.  In  order  to  avoid  in- 
justice, a  judge  may  even  depart  from  a  preceding  simi- 
lar case,  if  it  is  manifestly  erroneous,  and  he  need  only 
be  careful  to  distinctly  state  the  reasons. 

Case-Law  is  free  law,  is  rational  law,  is  true  law,  is 
natural  law;  and  for  these  reasons  alone,  is  common  and 
equity  law  a  true  science,  instead  of  a  record  of  arbitrary 
judgments.  It  is  the  most  precious  product  and  heritage 
of  a  free  people.  It  is  the  stable  foundation  and  guaran- 
tee of  truth,  and  liberty,  and  right.  Every  American 
citizen  and  especially  the  student,  the  lawyer  and  the 
judge,  should  understand  its  source,  nature  and  scope, 
and  should  understand  the  different  source,  nature  and 
scope,  of  statute  law,  or  code  law.  The  principles  of  the 
one,  though  ^ '  unwritten, ' '  are  known  and  established  only 
by  the  facts  and  customs  of  the  life  of  the  race ;  the  other 
is  written  and  established  by  the  pen  and  power  of  the 
law  givers,  even  it  may  be,  contrary  to  the  facts  and 
customs  of  life. 

§  10.    No  case  law  in  continental  Europe.    On  the 

European  continent,  in  code  countries,  statutes,  under  the 
name  of  a  code,  are  supposed  to  cover  all  cases  that  can 
arise,  and  no  decisions  are  tolerated  in  the  sense  of  mak- 
ing authoritative  precedents.  There,  every  combination 
of  facts  is  judged  under  the  letter  of  some  statute, 
whether  so  intended  or  not.  Therefore  in  Europe,  there 
exist  no  illustrative  preceding  cases,  to  prevent  the  Euro- 
pean judge  from  being  arbitrary;  and  he  need  give  no 
reasons  for  his  decision;  and  no  case,  however  carefully 
reasoned  out,  is  officially  printed  and  preserved  as  a 
guide  for  similar  cases  in  the  future. 

§  11.  The  equity  court  rescued  the  common  law.  As 
said  before,  the  ancient  common  law  judges  exaggerated 
the  importance  and  sufficiency  of  their  own  decisions,  and 


12  EQUITY  PLEADING  AND  PRACTICE 

tlius  they  narrowed  the  meaning  of  case-law,  and  of  the 
doctrine,  stare  decisis.  They  made  tlie  common  law 
almost  as  fixed  as  statutes.  To  them  the  king  was  the 
"fountain  of  justice"  and  they  were  his  justices.  In 
their  view  their  pronouncements,  decisions,  were  *'the 
commands  of  the  superior  power  to  the  subject."  These 
ideas  are  still  reflected  in  the  doctrines  of  Hobbes,  Ben- 
tham,  and  Austin.  But  truth,  right,  justice,  has  a  might 
of  its  o^vn;  it  finally  swept  away  the  ancient,  narrow 
\'iews  of  the  common  law,  and  compelled  even  the  king, 
to  invent  the  equity  court.  Had  more  of  the  ancient 
judges  themselves  fully  appreciated  the  nature  of  the 
conmion  law,  their  decisions  would  have  been  less  dog- 
matic, and  there  would  have  been  no  need  for  the  inven- 
tion of  the  equity  court ;  which,  after  all,  is  nothing  more 
than  a  sort  of  common  law  court,  which  has  adopted  anew 
the  true,  common  law  spirit  and  method. 

The  equity  court  rescued  English  law  from  slavery  to 
the  fixed  letter  of  precedents,  into  which  it  had  fallen, 
and  now  equity  and  common  law  together  really  con- 
stitute one  system  of  non-statute  law,  each  court  merely 
handling  a  distinct  class  of  cases.^^ 

§  12.  Origin  of  the  chancellor.  In  ancient  times  the 
proceedings  were  before  the  king,  who,  with  the  help  of 
his  chancellor  and  council,  judged  as  the  nature  of  the 
cause  required.  Later,  with  the  increase  of  business, 
petitions  were  referred  to  the  chancellor  alone,  who  at 
first  was  usually  a  bishop  of  the  church,  supposedly  a 
better  judge  of  "equity  and  good  conscience"  than  a  lay- 
man. Thus  the  chancellor  became  a  judge,  and  petitions 
were  addressed  to  him  instead  of  to  the  king.  The  chan- 
cellor was  also  called  "the  Keeper  of  the  Great  Seal," 
and  "the  Keeper  of  the  King's  Conscience."  ^^ 

13—1  story  Eq.  25. 
14 — Burrough's    History    of    the 
Chancery. 


NATURE   OP   EQUITY   AND   COMMON   LAW   JURISDICTION  13 

§  13.  No  jurisdiction  in  equity  where  there  is  a  remedy 
at  law.  Conflicts  arose  between  equity  jurisdiction  and 
that  of  the  common  law  courts  as  early  as  the  14th  cen- 
tury. In  later  centuries  it  came  to  be  settled  and  ac- 
cepted, that  equity  courts  could  have  no  jurisdiction 
where  there  was  an  adequate  remedy  at  law,  and  that  it 
did  have  jurisdiction  where  courts  of  law  could  not  give 
a  definite,  adequate  and  complete  remedy. 

If  a  court  of  equity  has  once  properly  obtained  juris- 
diction upon  some  equity  principle,  it  will  retain  such 
jurisdiction,  even  to  the  extent  of  granting  relief  which 
a  court  of  law  could  also  adequately  bestow.^  ^ 

§  14.  Consequence  of  suing  in  the  wrong  court.  How 
serious  may  be  the  objection  to  a  suit,  that  there  is 
adequate  remedy  at  law,  or,  in  other  words,  that  the  par- 
ticular case  is  not  a  case  within  the  jurisdiction  of  an 
equity  court,  depends  upon  the  procedural  law  of  the 
particular  state,  or  jurisdiction,  in  which  the  objection  is 
made.  In  states  where  equity  courts  are  entirely  distinct 
and  separate  from  law  courts,  such  objection,  if  valid, 
would  cause  a  dismissal  of  the  particular  suit,  and  suit 
til  en  must  be  begun  again  in  a  common  law  court.  In 
states  where  the  equity  courts  and  the  common  law  courts 
are  not  separate,  the  objection  must  be  raised  in  apt  time, 
or  it  will  be  waived.  In  some  jurisdictions,  as  in  the 
federal  courts,  a  case  erroneously  begun  in  equity,  may 
simply  be  transferred  to  the  law  side,  and  vice  versa. 

§  15.  According  to  the  case,  jurisdiction  of  equity 
courts  may  be  auxiliary,  concurrent  or  exclusive.  Equity 
jurisdiction  in  some  cases  may  be  auxiliary  to,  in  other 
cases  may  be  concurrent  with,  and  still  in  other  cases 
may  be  exclusive  of,  the  jurisdiction  of  courts  of  law. 
For  example,  auxiliary,  as  in  the  case  of  a  bill  of  dis- 
covery to  aid  a  proceeding  at  law;  concurrent,  one  may 

15 — WilliamsoH  v.  Monroe,  101  Fed. 
322. 


14  EQUITY  PLEADING  AND  PRACTICE 

choose  to  sue  at  law  for  damages  for  a  breach  of  con- 
tract, or  sue  in  equity  for  specific  performance  of  the 
same  contract;  exclusive,  as  in  a  suit  where  the  bill 
seeks  the  reformation  of  a  written  instrument,  a  pro- 
ceeding not  permitted  at  common  law.  In  other  \vords  a 
suit  pending  in  a  law  court  may  be  aided  by  bringing  also 
another  suit  in  an  equity  court,  for  discovery  of  certain 
evidence  to  be  used  in  the  suit  at  law.  Again  there  are 
cases  where  there  is  one  remedy  at  law  and  a  different 
remedy  in  equity,  and  plaintiff  can  choose  either  court, 
but  not  both.  There  are  other  cases  where  the  remedy  is 
in  equity  alone. 

§  16.  Administration  of  equity  jurisdiction  as  a  rule 
is  distinct  from  common  law  jurisdiction,  and  equity 
pleading  is  distinct  and  different  from  pleadings  at  com- 
mon law.  In  the  federal  system,  the  equity  jurisdiction 
is  lodged  in  the  district  courts  of  the  United  States,  and 
is  distinct  and  separate  from  the  common  law  jurisdic- 
tion. In  most  of  the  states  also,  the  administration  of 
equity  jurisdiction  is  distinct  and  separate  from  that 
of  common  law.  Therefore,  equity  pleading  and  prac- 
tice, is  a  distinct  system.  It  is  necessary  for  a  student 
to  understand  the  nature  of  a  court  of  equity,  also  the 
prineipnl  maxims  of  equity  jurisprudence,  also  the 
cliiof  subjects  of  equity  jurisdiction,  in  order  to  have  an 
intelligent  idea  of  equity  pleading  and  practice. 

§  17.  Equity  procedure  differs  from  that  of  common 
law.  In  equity  pleading  there  is  but  one  form  of  stating 
a  chiiin  or  a  defense,  and  that  form  is  simply  to  state  the 
ultimate  facts  necessary  to  constitute  the  claim  or  de- 
fense. 2\t  common  law,  there  are  several  distinct 
forms  of  actions,  according  to  one  or  the  other  of  which, 
every  common  law  case  must  be  pleaded.  In  equity 
cases,  evidence,  as  a  rule,  is  reduced  to  writing,  usually 
in  the  form  of  depositions,  taken  outside  the  courtroom, 
and  afterwards  delivered  in  court,  and  read  to  the  court. 


NATURE   OF  EQUITY   AND   COMMON   LAW   JURISDICTION  15 

at  the  hearing  of  the  case  for  a  decree.  At  common  law, 
oral  evidence,  as  a  rule,  is  offered  before  a  jury  in  open 
court.  At  common  law,  a  jury  usually  hears  and 
judges  the  facts;  in  equity,  the  judge  hears  and  judges 
the  facts.  At  common  law  the  decision  of  the  case  is 
in  the  form  of  a  judgment  for  the  plaintiff  usually  in 
damages;  in  equity,  the  decision  is  in  the  form  of  a 
decree,  not  merely  giving  money  damages,  but  ordering 
all  the  varied  acts  or  conduct  which  may  be  necessary 
for  justice  in  each  different  case.  At  law,  the  remedy,  as 
a  rule,  is  damages ;  in  equity  the  remedy,  as  a  rule,  is  per- 
sonal compulsion  to  do  or  personal  injunction  against  do- 
ing particular  acts.  Common  law  compensates  for  a 
wrong  done ;  equity  actively  corrects  or  prevents  a  wrong. 
Through  equity  even  a  child  can  call  to  his  rescue  the 
entire  power  of  the  state,  to  prevent  a  threatened  serious 
wrong,  however  numerous  and  powerful  the  wrongdoers. 
Equity  is  the  strong  arm  of  the  law,  ever  ready  to  aid  the 
oppressed  and  to  punish  the  oppressor.  Equity  fulfils 
the  mission  of  law;  it  is  society's  active  force  for  right- 
eousness. 


CHAPTER  n 

Parties 

§  18.  Parties.  All  persons  having  material  interests 
in  the  subject-matter,  wliicli  will  be  affected,  or  may  be 
settled,  by  a  decree,  should  be  made  parties;  because 
equity  courts  aim  to  settle,  not  merely  the  rights  be- 
tween the  parties  who  are  disputing,  but  also  the  rights 
of  all  others  interested  in  the  subject  matter,  for  the  pur- 
pose of  doing  justice  completely  ''and  not  by  halves," 
and  to  prevent  further  litigation. 

§  19.  Parties  plaintiff.  All  persons  interested  in  the 
subject-matter  and  entitled  to  the  relief  sought,  should 
be  joined  as  complainants.  In  equity  a  suit  must  be 
brouglit  in  the  name  of  the  real  party  in  interest,  even 
if  he  is  an  assignee,  for  example ;  and  not,  as  at  common 
law,  in  the  name  of  an  assignor  ''for  the  use  of"  his 
assignee.  An  executor,  administrator,  guardian,  trus- 
tee of  an  express  trust,  a  party  with  whom  or  in  whose 
name  a  contract  has  been  made  for  the  benefit  of  another, 
or  a  party  expressly  authorized  by  statute,  may  sue  in 
his  own  name,  without  joining  the  party  for  whose  benefit 
the  action  is  brought.'  Parties  w4io  have  conflicting  in- 
terests should  not  be  joined  as  plaintiffs.^  If  among  the 
})Uiintiffs  tliere  be  one  not  entitled  to  relief,  the  objection 
should  be  cured  by  dismissing  the  bill  as  to  such  plain- 
tiff.   If  one  not  made  a  party,  discloses  an  interest  in  the 


a— U.  S.  Eq.  Eule  37. 
1— AlHton  V.  Jones,  .3  Barb.  397; 
U.  S.  Eq.  Rule  37. 

16 


PARTIES  17 

subject-matter,  plaintiff  must  amend  his  bill,  and  make 
him  a  party. 

§  20.  Parties  defendant.  All  persons,  whose  interest 
or  riglits  will  be  affected,  or  can  be  settled,  by  the  decree, 
who  have  not  been  joined  as  plaintiffs,  or  whose  inter- 
ests are  adverse  to  the  plaintiff,  should  be  joined  as 
defendants. 

§  21.  Circumstances  under  which  some  parties,  though 
having  an  interest  in  the  subject-matter,  can  be  dispensed 
with.  As  before  stated,  all  persons  whose  interests  can 
be  affe^ited  by  a  decree,  should  be  made  parties,  either 
plaintiffs  or  defendants,  in  order  that  equity  may  do 
complete  justice  and  prevent  further  litigation.  But 
where  it  is  clear  that  justice  may  be  defeated  by  the  dif- 
ficulty, delay,  or  impossibility,  of  bringing  in  certain 
parties,  then,  if  a  decree  can  be  entered,  which  will  not 
affect  the  rights  of  such  unservable  parties,  equity  will 
proceed  to  such  a  decree  without  them.  Whether  or  not 
a  party  can  be  dispensed  with,  depends  upon  the  nature 
of  his  interest,  and  whether  or  not  his  interests  must  be 
affected  by  the  decree  to  be  entered.^     This  leads  to 

§  22.    Three  degrees  of  dispensability  of  parties: 

1.  NecessakY'  and  Indispensable  Parties.  Persons 
having  interests  such  that  no  decree  can  be  made  in  the 
suit  without  affecting  such  interests;  the  courts  are 
powerless  to  proceed  without  such  parties.^ 

2.  Necessary  but  Dispensable  Parties.  Persons 
having  interests  such  that  the  controversy  cannot  be 
determined  completely  without  them,  but  still  such  a 
peculiar  interest,  that  some  kind  of  a  decree  can  be 
entered,  which  will  not  affect  such  interest;  the  court  has 
power  to  refuse  to  proceed  without  such  parties;  but  it 

2— Marco  v.  Hublin,  56  Fed.  Eep.       Cas.  No.  14068;   1  McAlI.  26;  Mal- 
549.  low  V.  Hinde,  12  Wheat.  U.  S.  193. 

3— Tobin  v.  Walkinshaw,  23  Fed. 
E.  P.— 2 


18  EQUITY  PLEADING  AND  PRACTICE 

■u-ill,  ill  its  (liscrotioii,  proceed  without  them  where  the  bill 
shows  that  the  delay,  diiliculty  or  impossibility  of  bring- 
ing parties  in,  would  defeat  justice  ;3^  as  when  such 
parties  are  beyond  the  jurisdiction;  or  when  such 
parties  are  unknown  after  duo  diligence  to  ascertain 
them;  or  if  parties  are  so  numerous  that  it  is  not  prac- 
ticable to  bring  them  all  in,  and  at  the  same  time  those 
absent,  are  virtually  represented  by  similarly  interested 
parties  actually  present  in  court  defending  the  suit,^  as 
is  the  case  with  numerous  members  of  a  voluntary  as- 
sociation ;  or  when  some  parties,  if  mimed,  would  oust  the 
court's  jurisdiction,'^  or,  if  the  absent  parties  have  ac- 
quired an  interest  for  the  very  purpose  of  ousting  the 
court's  jurisdiction;  or  if  parties  are  not  yet  in  existence 
who  may  have  a  future  contingent  interest,  and  they  are 
virtually  represented  by  parties  already  in  court.^ 

3.  Unnecessary  but  Proper  (or  Nominal,  or  Formal) 
Parties.  Persons  who  have  no  interest  in  the  con- 
troversy, yet  have  an  interest  in  the  subject-matter  of 
the  controversy,  which  it  is  convenient  to  settle  in  the 
suit;  it  is  optional  with  the  plaintiff  to  omit  or  to  join 
such  persons  as  parties.  Where  no  account,  payment, 
conveyance,  or  other  direct  relief  is  sought  against  a 
party  to  a  suit,  not  being  an  infant,  such  party  upon  serv- 
ice of  subpoena  upon  him,  need  not  appear  and  answer 
unless  plaintiff  specially  requires  him  to  do  so  by  prayer. 
But  he  may  appear,  and  if  he  does  not  appear  and  an- 
swer, he  shall  be  bound  by  all  proceedings  in  the  cause. 
If  required  to  answer  he  shall  be  entitled  to  the  costs  of  • 
all  proceedings  against  him  unless  the  court  otherwise 
directs.^* 


3a— Payne    t.    Hook,    7  Wallace  5— U.   S.  Eq.  Rule  39. 

4-5-433.  6— McFall  v.  Kirkpatrick,  236  111. 

4— U.    S.    Eq.   Eule    38;  Hale   v.      306. 
Hale,  146  111.  227.  6a— U.  S.  Eq.  Eule  40. 


PARTIES 

Parties  in  Equity 


19 


C!«S 

■S 

ja  ca  3 

sa 

■o-e 

\a 

•a 

rT® 

a  . 

is 

©J2 

-5<B  = 

Cfl'" 

T3  O 

•a  c3 
Co, 

cl 

£  - 

■°S 

ft* 

C-. 

<D  o 

■"  te'O  o 

©«^ 

ss 

Br 

li 

1- 

n3 

ftg^  o 

CCS 

^•1  1 

-£ 

^^,y 

p 

0)  <B 

^1 

sg 

Cft 

>o 

rr  "U 

P 

.2^=' 

1:3  ** 

cflJ2 

s3 

ja  o 

-  u 

&5 

iis 

o  o 


si 


C  CO 


.£■? 


^:h 


t->  CO 
®  0) 


^S 


t' 

00 

"  "O 

ce 

£:  a> 

CB  — 

o 

.—i 

M  '^ 

iz; 

cd  p.  p. 

?  fe  >,  =  -^  <B  -a  _,     "s  c  t,  -a  -■ 


-5  ^-w  ".tc-<(B-urt)?:^    -     ^.:: 

is  a  ftJ4  o  &      S  a,  o  5  p.  a:3 


®  ^  0)  nj 


O  ; 

c  a  o  CO 

a 

■St3 

0) 

id 

.a 

Bn 

a 

T3 

C  (> 

a;  r. 

aj 

^ 

IS 

tfl  !- 

0) 

.sta 

c 

a 

o 

hnV? 

13 

.ss-, 

3.2 

is 

<D 

C  >^£ 

a 

ca  o 

rfi  ^ 

3 

c 

cti 

o 

aS' 

X] 

^g 

t,  £  <E  4)  t.  x'3 
OS  a®  a  c.£  o 


ga^ 


0) 

P.a  am  u  q  o  A 


20  EQUITY  PLEADINfi  AND  PRACTICE 

§  23.  Creating',  or  dividing,  interests  to  oust  the  juris- 
diction. If  a  party  has  divided  his  interest  among  a 
number  of  persons  for  the  purpose  of  depriving  the 
court  of  jurisdiction,  the  suit  will  proceed  in  tlie  absence 
of  such  parties,  because  such  a  division  is  an  attempt  to 
defeat  justice^  It  would  also  be  an  attempt  to  defeat 
the  jurisdiction  of  a  federal  court,  if  a  real  party  in 
interest,  who  should  be  the  defendant,  makes  a  merely 
colorable  conveyance  of  his  interest  to  a  person  of  the 
seme  citizenship  as  the  complainant. 

§  24.  Parties  who  consent  to  a  decree  without  being 
named  as  parties.  It  is  not  necessary  to  pray  process 
and  serve  with  process  parties  who  it  is  alleged  in  the 
bill,  will  consent  to  the  decree.  The  decree  in  such  case 
should  expressly  find  that  such  parties  approved  the  de- 
cree in  writing. 

§25.  Virtual  representation  of  parties.  Sometimes 
parties  who  are  virtually  represented  by  others,  may  be 
bound  by  the  decree.  Such  parties  are  deemed  to  be  con- 
structively before  the  court,  though  in  fact  they  have  no 
opportunity  to  be  heard.  Their  interests  must,  how- 
ever, be  virtually  and  fairly,  though  not  actually,  repre- 
sented by  others  who  are  before  the  court.  For  example : 
Executors  and  administrators  represent  creditors  and 
distributees,^  and  an  assignee  for  creditors  represents 
the  insolvent  debtor  and  his  creditors.'^ 

§26.  Naming  of  parties  as  plaintiffs  or  defendants. 
The  exact  designation  of  parties  as  plaintiffs  or  defend- 
ants is  not  strictly  necessary.  The  court  may  transpose 
a  party  from  one  side  to  the  other,  or  it  may  proceed  to 
a  decree  without  making  the  formal  change.     One  who 

7 — Union  Bank  of  La.  v.  Stafford,  9 — Stevenson   v.   Austin,    3   Mete. 

12   Howard,   327;    Calv.   Parties,  p.      Mass.  474. 
61. 

8 — Sturgeon  v.  Burrall,  1  111.  App. 
537. 


PARTIES  21 

should  be  a  co-complainant,  but  refuses  to  join  as  such, 
should  be  made  a  defendant.^" 

§  27.  Who  are  deemed  parties.  The  parties  to  a  suit 
in  equity,  are  those  only  who  are  named  as  parties  in  the 
bill;  plaintiffs  as  named  in  the  introductory  part,  and 
defendants,  those  named  as  such,  and  against  whom 
process  or  summons  is  prayed.  Persons,  not  parties  to 
the  record,  may  be  heard  upon  petition  or  motion,  but 
the  court  will  not  look  outside  the  record  for  the  parties. 
One  not  named  as  a  party  cannot  make  himself  a  party  by 
filing  a  pleading  to  the  bill.  But  any  one  claiming  an 
interest  in  the  litigation  may  at  any  time  be  permitted 
to  assert  his  rights  by  filing  an  intervening  petition ;  but 
such  intervention  shall  be  subordinate  to  the  main  pro- 
ceeding.^^ 

§  28.  To  obtain  answer  under  oath,  of  corporation 
officer.  When  the  complainant  desires  to  obtain  from  a 
corporation  the  answer  of  some  officer  of  the  corporation, 
under  oath,  such  officer  must  be  named  and  made  one  of 
the  defendants,  in  the  bill.^^ 

§29.  Objections  as  to  parties.  The  objection  that  a 
party  has  been  misjoined  as  a  defendant,  when  he  should 
have  been  joined  as  a  plaintiff,  or  vice  versa,  is  often  dis- 
regarded, because,  in  equity,  it  is  not  always  important. 
Such  an  objection  must  be  made  in  apt  time.  But  an 
objection  that  there  has  been  nonjoinder  of  a  necessary 
and  indispensable  party,  may  be  raised,  in  any  manner, 
at  any  time,  as  on  the  hearing  or  on  appeal,  and  it  goes 
to  the  jurisdiction.  The  court  may  of  its  own  motion 
raise  and  act  upon  the  objection.  But  U.  S.  Equity  Rule 
43  requires  plaintiff  to  set  the  cause  for  hearing  within 
fourteen  days  after  answer,  "upon  defendant's  objection 
for  a  want  of  parties,"  so  that  the  question  of  necessary 

10— Whitney  v.  Mayo,  15  111.  251.  12— Buford    v.    Eueker,    4    J.    J. 

11— U.  S.  Eq.  Eule  37.  March  551. 


22  EQUITY  PLEADING  AND  PRACTICE 

parties  can  be  determined  before  proceeding  further.  If 
jilaintiff  omits  to  do  this  the  court  may  dismiss  the  bill. 
Tht*  objection  that  necessary,  but  dispensable,  parties 
were  not  joined,  must  be  raised  by  demurrer,  plea,  or 
answer,  in  which  the  proper  omitted  parties  must  be 
pointed  out,  not  by  name,  if  that  is  impossible,  but  in 
such  manner  as  to  indicate  the  precise  objection  and 
enable  plaintiff  to  amend.^^  jf  gudi  objection  is  delayed 
till  the  hearing  in  the  federal  courts,  the  court  is  at  liberty 
to  make  a  decree,  saving  the  rights  of  the  absent 
parties.'^" 

§30.  Ccrrecting  defects  as  to  parties.  The  question 
of  nonjoinder  of  necessary  parties,  should,  if  possible,  be 
raised  before  incurring  the  delay  and  expense  of  taking 
testimony. 

The  proper  course  in  case  of  misjoinder  is  to  amend 
by  dismissing  as  to  the  one  improperly  joined.  Where 
the  defect  is  a  nou  joinder  of  necessary  parties,  the  suit 
is  merely  suspended.  The  court  should  not  proceed  until 
the  absent  parties  are  before  it,  but  the  proper  order 
is  for  the  cause  to  stand  over,  with  leave  to  amend  by 
adding  new  parties,  and  if  that  be  not  done  within  the 
time  fixed,  that  the  bill  be  then  dismissed.  An  appellate 
court  will  not  reverse  a  decree  for  want  of  parties  who 
ought  to  have  been  joined,  provided  sufficient  parties 
were  before  the  court  to  sustain  the  decree  as  rendered ; 
and  where  tne  decree  cannot  be  sustained,  the  court  will, 
generally,  instead  of  dismissing  the  bill,  remand  it  to 
the  court  below,  that  the  omitted  parties  may  be  brought 
in. 

§  31.  Partners  should  be  named  as  individuals.  Where 
a  co-partnership,  or  association  other  than  a  corporation, 
is  a  party,  the  names  of  the  individuals  must  be  set  forth, 


13— U.  S.  Eq,  Eule  44.  14— The  Protector,  11  Wall.   82; 

13a— U.  S.  Eq.  Eule  44.  Chapman  v.  Barney,  129  U.  S.  677. 


PARTIES  23 

because  it  is  not  proper  to  use  the  firm  name.^^  And  the 
full  given  names  of  the  parties  in  all  cases  should  be  used 
instead  of  the  initials.  ^° 

§32.  Federal  jurisdiction  based  on  diverse  citizen- 
ship. Bills  in  the  federal  courts,  when  based  on  diverse 
citizenship,  must  distinctly  and  positively  aver  the 
diverse  citizenship  of  the  parties,  and  suit  must  be 
brought  in  the  district  where  the  defendant  resides,  or 
where  he  is  found  when  served  with  process. 

15 — Monroe  Cattle  Co.  v.  Becker, 
147  U.  S.  47;  U.  S.  Eq.  Eule  25.    - 


CHAPTER  III 
Process  or  Summons 

§33.  Process,  service,  and  return.  The  issuing  and 
serving  of  formal  process  or  summons,  except  where 
there  is  a  voluntary  general  appearance,  is  essential,  to 
obtain  jurisdiction  over  a  party  defendant,  and  the  facts 
of  service  should  appear  of  record.  Unless  the  statute 
provides  otherwise,  process  should  be  served  by  the 
sheriff  or  marshall.  The  method  prescribed  must  be 
strictly  followed.  In  order  to  confer  jurisdiction  the 
"return"  must  state  specifically  in  what  form  or  manner 
service  was  made,  showing  full  compliance  with  law, 
identifying  with  certainty,  the  person  served  with  the 
one  named  in  the  writ  of  process.  Where  service  is 
made  by  a  private  person,  proof  of  service  must  be  by 
affidavit.  Constructive  service,  by  publication  or  by 
service  with  a  copy  of  the  bill,  is  provided  for  by  statutes, 
in  cases  where  the  proceeding  is  in  rem,  though  the  suit 
be  personal  in  form ;  as  for  instance,  a  suit  for  the  fore- 
closure of  a  mortgage.  Strict  compliance  with  the 
statute  as  to  constructive  service  must  affirmatively  ap- 
pear of  record. 

In  the  federal  practice  defendants  already  before  the 
court  who  are  made  parties  defendant  to  an  answer  in 
the  nature  of  a  cross-bill,  need  not  be  served  with  process, 
but  must  reply  to  such  counter-claim  upon  receiving 
proper  notice.^ 

§  34.  Practice  in  U.  S.  courts  in  obtaining  jurisdiction 
over  parties  not  found  within  the  district.    When  in  any 

1— U.  S.  Eq.  Rule  31. 

24 


PROCESS  OR  SUMMONS  25 

suit  in  equity,  commenced  in  any  court  in  the  United 
States,  to  enforce  any  legal  or  equitable  lien  or  claim 
against  real  or  personal  property  within  the  district 
where  such  suit  is  brought,  one  or  more  of  the  defendants 
is  not  an  inhabitant  of,  or  found  within  the  district,  or 
does  not  voluntarily  appear,  the  court  may  enter  an 
order  directing  such  absent  defendant  to  appear,  plead, 
answer  or  demur  to  the  complainant's  bill  on  a  day 
therein  designated.  This  order  must  be  served  on  such 
absent  defendant,  if  practicable,  wherever  found;  or, 
where  such  personal  service  is  not  practicable  the  order 
must  be  published  in  such  manner  as  the  court  directs. 
In  case  such  absent  defendant  does  not  appear,  plead, 
answer  or  demur  within  the  time  limited,  or  within  some 
further  time  to  be  allowed  by  the  court  in  its  discretion, 
and  upon  proof  of  the  service  or  publication  of  said 
order,  and  of  the  performance  of  the  directions  contained 
in  the  same,  it  is  lawful  for  the  court  to  entertain  juris- 
diction, and  proceed  to  the  hearing  and  adjudication  of 
such  suit  in  the  same  manner  as  if  such  absent  defendant 
had  been  served  with  process  within  the  said  district; 
but  such  adjudication,  as  regards  such  absent  defendant 
without  appearance,  affects  only  his  property  within 
such  district.- 

2— Sec.  13  U.  S.  statute,  in  force 
June  1,  1872. 


CHAPTER  IV 

Appearance  in  Court 

§  35.  Mode  of  appearing  in  court.  On  or  before  the 
day  to  which  process,  or  summons,  is  made  returnable, 
to  prevent  the  entry  of  a  court  order  declaring  a  default 
against  him,  the  defendant,  either  personally  or  by  his 
solicitor,  must  ''enter  his  appearance,"  either  by  filing 
his  defensive  pleading,  or  by  filing  a  writing,  stating  he 
enters  his  appearance.  If  defendant  has  been  served 
with  summons  within  less  than  due  time  before  the  ' '  re- 
turn" day,  then  the  appearance  day,  in  most  jurisdictions 
is  the  next  rule  day  following.^ 

§  36.  Voluntary  appearance.  A  defendant  may  waive 
the  service  of  process,  or,  having  been  served,  may  waive 
the  time  allowed  him,  and  enter  his  appearance.  The 
voluntary  appearance  of  a  defendant  not  served  with 
process,  has  the  same  effect  as  the  service  of  process.^ 

§  37.  Effect  of  appearance.  Appearance  waives  all 
defects  of  process  or  of  service  of  process,^  and  also 
waives  all  defects  of  jurisdiction  over  the  person,  unless 
the  appearance  is  a  special  or  limited  appearance. 

§  38.  A  special  or  limited  appearance,  is  one  expressly 
limited,  upon  the  record,  to  be  an  appearance  not  for  the 
purpose  of  submitting  to,  buffer  the  sole  purpose  of  ob- 
jecting to  the  court's  jurisdiction." 


1— U.  8.  Eq.  Rules  12,  16.  3—1  Barb.  Ch.  78. 

2— Chattcrton   v.   Chatterton,   132 
111.  App.  51. 

26 


CHAPTER  Y 

Bills  in  Equity 

§  39.  The  chief  pleadings.  The  chief  pleadings  in  an 
equity  case  are:  (1)  the  bill  of  complaint;  (2)  the  demur- 
rer, plea,  or  answer,  of  the  defendant;  (3)  the  replica- 
tion of  the  complainant. 

§  40.  Purposes  of  written  pleadings.  At  the  trial  of 
every  case  each  party  must  prove  every  allegation  of  the 
material  facts  necessary  to  constitute  his  claim  or  his 
defense.  Therefore,  these  material  facts  must  be  made 
known  to  the  parties  before  trial  in  order  that  they  may 
ascertain  and  secure  the  proper  evidence  and  witnesses, 
pro  and  con.  Pleadings,  stating  these  constituent  facts 
before  trial,  serve  as  record  notice  to  the  court,  to  the 
parties,  and  to  the  world,  of  the  constituent  facts  sub- 
mitted for  trial  as  a  valid  claim  or  defense.  Parties  are 
thereby  protected  against  surprises  and  false  proofs  at 
trials,  against  the  trial  of  claims  or  defenses  invalid  upon 
the  face  of  the  pleadings,  against  the  trial  of  claims  or 
defenses  or  facts,  confessed  by  the  pleadings,  and  against 
a  second  litigation  upon  facts  once  before  solemnly  ad- 
judicated. Only  through  the  requirement  of  definite, 
written  pleadings,  can  the  invalidity  of  a  claim  or  defense 
be  discovered  before  trial.  Before  being  subjected  to 
the  trouble  and  expense  of  a  trial,  parties  are  given  op- 
portunity to  challenge,  by  demurrer  or  other  objection, 
the  validity  upon  its  face,  of  any  proposed  claim  or  de- 
fense. The  time  old  rule,  that  a  decree  must  conform  to 
the  allegations  as  well  as  to  the  proofs,  of  the  parties,  is 
not  only  one  that  justice  requires,  but  one  that  necessity 

27 


28  EQUITY  PLEADING  .VND  PRACTICE 

imposes  upon  the  courts.^     By  proper  pleadings  most 
controversies  can  be  narrowed  down  to  a  few  issues. 

§  41.  Indefinite  pleadings  give  insufficient  notice. 
Pleadings  which  pretend  merely  to  identify  the  transac- 
tion sued  upon,  or  to  mention  the  mere,  general  nature 
of  a  claim  or  defense,  without  pointing  out  all  the  neces- 
sary constituent  facts  of  the  claim  or  defense, — give 
some  notice,  but  such  pleadings  may  be  too  broad  for 
suflicient  notice.  Insufficient  notice  may  be  as  harmful 
as  no  notice.  Such  indefinite  pleadings,  and  the  so-called 
''oral  pleadings"  (no  pleadings)  are  tolerated  in  minor 
courts  not  of  record,  in  most  "justice  of  the  peace" 
courts,  and  in  "Probate  claims,"  which  are  usually  un- 
contested; because  of  the  limited  jurisdiction  of  such 
courts,  and  because  of  the  usually  limited  nature  of  the 
controversies.  Such  pleadings  are  plausibly  advocated 
because  they  require  no  care,  pains,  or  skill.  Any  impor- 
tant and  strongly  contested  controversy  demonstrates 
the  necessity  of  definite  issues  and  pleadings.  Indefinite 
pleadings,  as  a  rule,  are  not  in  actual  practice,  tolerated 
in  American  courts  of  record.  Definite  pleadings,  more 
than  any  other  procedural  requirement,  promote  justice, 
protect  private  rights,  and  save  public  time  and  expense. 
Definiteness  is  a  "reform"  tested  by  the  ages.  Fair  no- 
tice of  the  elements  which  must  be  proved,  is  only  fair 
play  and  good  method  to  all  concerned. 

§42.  Liberty  to  amend  is  no  excuse  for  indefinite 
pleading.  Pleadings  are  definite  written  statements  to 
advise  the  court,  the  parties  and  the  world,  of  the  facts 
submitted  for  trial;  to  prevent  the  trial  of  claims  and 
defenses  baseless  upon  their  face;  to  prevent  surprises 
and  false  proofs,  to  prevent  repeated  litigations  of  the 
same  facts,  to  prevent  wasting  the  time  of  the  court  and 
misleading  the  jury  by  irrelevant  proofs.  They  are 
therefore  required  to  be  definite  and  complete  as  a  rule, 

1— Crocket  v.  Lee,  7  Wheat.  522, 


BILLS  IN  EQUITY  29 

and  especially  so,  if  the  opposite  party  challenges  the 
validity  or  correctness  of  the  claim  or  defense  as  stated, 
by  demurrer  or  other  objection.  Courts  and  statutes 
are  liberal  in  permitting  amendments,  where  a  pleader 
fails  to  plead  properly,  but  a  pleader  cannot  afford  to 
trust  to  his  being  allowed  always  to  amend.  The  lawyer 
who  does  not  fairly  understand  the  subject  of  pleading 
and  practice  should  secure  the  aid  of  a  good  pleader  and 
trial  lawyer.  The  permitting  of  amendments  is  limited, 
and  poor  pleading  is  often  discovered  only  when  too 
late.  Most  of  the  laws  of  procedure  are  as  necessary 
for  justice  as  are  the  laws  of  rights  and  wrongs.  It  is 
the  peculiar  business  of  a  lawyer  to  be  familiar  with 
procedural  law.  A  layman  usually  knows  his  rights, 
but  he  seldom  knows  the  machinery  for  enforcing  them, 
and  therefore  he  seeks  the  lawyer. 

§  43.  If  no  demurrer  or  objection  to  pleading,  judg- 
ments based  thereon  usually  stand.  The  requirement  of 
definite  and  complete  pleadings,  is  not  always  so  rigidly 
enforced  by  all  the  courts,  as  to  defeat  justice  in  a  suit. 
If  no  demurrer  or  other  objection  to  insufficient  plead- 
ing's is  made,  the  judgment  is  often  permitted  to  stand. 
Nevertheless  the  record  notice  to  the  world  of  such  a 
suit,  as  notice  by  lis  pendens,  and  as  res  adjudicata,  de- 
pends for  its  efficacy  upon  the  definiteness  of  the  plead- 
ings, as  well  as  of  the  decree. 

§  44.  Pleadings  proposed  to  be  under  oath.  In  order 
that  the  student  may  better  understand  the  true  nature 
and  purpose  of  pleadings,  it  may  be  added,  that  perhaps 
the  chief  reform  needed  in  pleadings,  is  that  they  be  re- 
quired to  be  under  oath,  without  regarding  statements 
therein  contained  as  evidence  in  the  cause,  but  as  mere 
pleadings.  Also,  a  material  allegation  in  one  pleading, 
ignored  or  not  denied  in  the  opposite  pleading,  should 
be  held  to  be  confessed  by  such  opposite  pleading. 
In  federal  practice  unanswered  allegations  of  the  bill  are 


30  EQUITY  PLEADING  .VND  PRACTICE 

deemed  to  be  confessed.  Rather  than  commit  perjury, 
parties  will  then  plead  the  true  facts,  and  confess  the  true 
facts.  Questions  of  fact  left  for  trial  and  proof,  will  be 
less  in  number.  Many  cases  will  be  determined  by  the 
pleadings  without  trial.  A  person  pleading  without  the 
responsibility  of  an  oath,  is  encouraged  to  make  exagger- 
ated, reckless  and  false  allegations  and  denials.  In  some 
jurisdictions,  like  Illinois,  the  bar  associations  have 
recommended  this  reform.  Such  pleadings  may  well 
be  supplemented  by  permitting  further  interroga- 
tories to  be  propounded,  and  to  be  answered  under 
oath,  also  without  the  effect  of  regarding  such  answers 
as  evidence.  Answers  to  interrogatories  are  regarded 
as  additional  pleadings,  which  of  course  may  confess 
facts  as  well  as  deny  them.  Such  is  now  the  practice 
in  the  Municipal  Courts  of  Chicago.  In  the  hands  of 
intelligent  pleaders  controversies  are  thus  narrowed 
down  to  very  few  issues,  saving  much  public  and  pri- 
vate time  and  expense. 

In  the  new  federal  practice  rule  58  provides  for  addi- 
tional interrogatories  from  either  plaintiff  or  defendant 
to  be  answered  under  oath,  and  rule  20  provides  that  the 
court  may  order  either  party  to  file  a  bill  of  further  par- 
ticulars, giving  a  further  and  better  statement  of  the 
nature  of  a  claim  or  defense.  Thus  in  the  federal  prac- 
tice, through  a  sort  of  secondai^^  pleadings,  definite  is- 
sues are  formulated  before  trial  if  the  parties  insist. 

§  45.  Definite  pleadings  required  in  equity.  At  com- 
mon law,  the  '  *  common  counts ' '  declared  upon  by  a  plain- 
tiff, and  the  ''general  issues"  pleaded  by  a  defendant, 
are  so  broad  as  to  give  practically  no  fair  notice  to  the 
parties  or  to  the  court,  of  the  true  issues  of  fact  to  be 
tried.  In  equity  pleadings,  there  are  no  "common 
counts"  and  no  ''general  issues,"  and  pleadings  must 
plead  the  definite  material  facts. 


BILLS  IN  EQUITY  31 

§  46.  Bill,  petition,  information.  A  suit  in  equity,  if 
brouglit  by  a  private  person,  is  begun  by  a  ''Bill"  or 
** Petition."  If  brought  by  the  Attorney  General,  or  by 
the  State 's  Attorney,  on  behalf  of  the  government  or  the 
people,  the  complaint  is  called  an  "Information."  A 
bill  in  equity  corresponds  to  a  declaration  at  law,  but 
it  has  an  additional  feature.  Besides  being  a  statement 
of  a  cause  of  action,  the  bill  is  also  an  examination  of 
the  defendant  as  a  witness  for  the  discovery  of  evidence 
from  him,  which  is  material  to  complainant's  case.  The 
stating  part,  the  charging  part,  the  interrogatory  part 
of  a  bill  in  equity,  all  call  for  full  answers  with  full  de- 
tails. 

§  47.  When  suit  begins,  as  against  statute  of  limita- 
tion, or  to  constitute  notice  by  lis  pendens.  Although 
we  speak  of  beginning  a  suit  by  filing  a  Bill,  or  an  In- 
formation; yet  as  against  the  running  of  a  Statute  of 
Limitations,  a  suit  is  not  considered  as  begun,  in  most 
states,  until  process  or  summons  has  been  issued  and  in 
good  faith  delivered  to  the  sheriff  for  proper  service. 
And  a  suit  is  not  considered  as  begun  so  as  to  be  notice 
to  the  world  by  lis  pendens  (pendency  of  suit),  until  the 
bill  is  filed  and  summons  is  served,  or  appearance  is 
entered. 

§  48.    Bills  original  and  bills  not  original.    Bills  are : 

(1)  Original,  which  begin  a  suit;  and  (2)  Not  Origi- 
nal, which  are  filed  in  a  suit  already  begun. 

§49.    Original  bills: 

(1)  Bill  of  Complaint,  wherein  a  complainant  seeks 
a  decree  determining  his  claims  against  the  defendant, 
such  as  a  bill  for  specific  performance,  or  a  bill  to  fore- 
close a  mortgage,  or  a  bill  for  a  breach  of  trust ; 

(2)  Bill  of  Intekpleader,  wherein  a  complainant 
seeks  a  decree  determining  not  his  own  claims,  but  those 


22  EQUITY  PLEADING  AND  PRACTICE 

of  rival  claimants  to  property  in  liis  bands,  in  order  that 
he  may  safely  turn  over  the  property  to  the  rightful 
owner. 

AVhere  two  or  more  persons  claim  the  same  property 
in  different  titles,  whether  legal  or  equitahle,  from  one 
who  is  in  the  position  of  an  innocent  stake  holder,  the 
latter,  if  molested  by  a  suit  actually  brought  or  threat- 
ened, may  file  his  bill  of  interpleader  for  the  purpose  of 
compelling  the  claimants  to  litigate  their  rights  at  their 
own  expense,  and  thus  protect  himself  from  all  vexation 
and  responsibility. 

Such  bill  will  lie  only  where  adverse  titles  or  claims 
are  derived  from  a  common  source,  and  where  the  com- 
plainant has  no  claim  or  interest  in  the  subject-matter 
or  controversy. 

(3)  Bill  of  Certiorari,  chiefly  used  to  transfer  a 
cause  from  an  inferior  court  to  a  higher  court  (which  in 
modern  practice  is  accomplished  in  most  cases  by  stat- 
utory appeals  and  writs  of  error) ; 

(4)  Bell  of  Discovery  (now  almost  obsolete  because 
by  statute  in  most  states  the  parties  to  a  suit  can  be  com- 
pelled to  testify),  asking  defendant  not  for  relief,  but 
to  disclose  facts  in  his  knowledge,  or  to  produce  writings 
in  his  control ; 

(5)  Bill  to  Perpetuate  Testimony,  or  Bill  to 
Examine  Witnesses  De  Bene  Esse,  for  the  purpose  of 
obtaining  and  preserving  evidence  against  probable  loss, 
because  of  old  age  of  witnesses,  or  because  of  illness,  or 
because  of  intended  absence  of  witness. 

The  first  three  bills  are  known  as  bills  praying  for  re- 
lief; the  last  two  are  known  as  bills  not  praying  for 
relief. 

§  50,    Bills  not  original: 

(1)     Supplemental  Bill,  setting  forth  facts  occur- 


CC  03 


3  m 


■Si 

o  o< 


"  t>».2 


BILLS  IN  EQUITY  33 

Original  Bills 


■3 


ag« 


be    2 


E.  P.— 5 


0^ 

o 


34  EQUITY  PLEADING  AND  PRACTICE 

rin.u-  after  a  bill  is  filed,  and  correcting  the  bill  to  agree 
witli  such  facts ;  or  to  introduce  a  new  party  made  neces- 
sary since  a  bill  was  filed.  A  supplemental  bill  thus  dif- 
fers from  an  amendment  to  a  bill,  which  is  merely  a 
correction  of  the  original  bill  and  is  treated  as  part  of 
the  original  bill. 

(2)  Cross-Bill,  filed  by  a  defendant  against  com- 
plainant, or  against  a  co-defendant  to  avoid  possible 
dismissal  of  the  bill,  and  to  gain  certain  affirmative 
relief  in  the  same  suit  beyond  a  mere  defense. 

(3)  Bill  to  Impeach  a  Deceee,  for  fraud. 

(4)  Bill  to  Suspend  a  Decree,  under  certain  circum- 
stances, or  because  of  certain  facts  discovered  after 
hearing  of  the  cause,  and  after  a  decree. 

(5)  Bill  to  Garry  a  Decree  into  Effect,  when  from 
neglect  or  other  cause,  it  is  impossible  to  do  so  without 
a  further  order  of  the  court. 

(6)  Bill  of  Revivor,  to  revive  a  suit  which  would 
abate  by  the  death  of  a  party,  or  for  certain  other  rea- 
sons. Modern  statutes,  in  tlie  case  of  the  death  of  a 
party,  provide  that  the  suit  may  proceed  against  the 
representatives  of  the  deceased,  if  the  death  is  suggested 
upon  the  record  by  motion,  naming  the  new  parties. 

(7)  Bill  of  Review,  to  review,  alter,  or  reverse  a 
decree,  either  because  of  an  error  of  law,  or  because  of 
new  matters  of  evidence  discovered  after  the  decree. 

§  51.  Bill  of  complaint.  The  bill  of  complaint  is  much 
more  frequent  than  other  original  bills,  and  its  impor- 
tance justifies  a  rather  full  treatment  and  careful  study. 

§  52.    An  original  bill  usually  has  nine  formal  parts: 

(1)  The  Address  To  The  Court,  by  correct  title  of 
the  court.    For  example : 

''To  the  Judges  of  the Court  of , 

In  Chancery  Sitting.'* 


BILLS  IN  EQUITY  35 

(2)  The  Introductoky  Part,  introducing  the  names, 
citizenship  and  abode  of  the  parties.^ 

For  example:  ^'A.  B.,  a  citizen  of,  and  residing  in  the 

County  of ,  in  the  State  of   , "  brings 

this  Bill  of  Complaint  against  C.  D.,  a  citizen  of  and 
residing  in  the   County  of    ,  in  the   State  of 


(3)     The  Stating  Part:  stating  the  facts  constituting 

the  claim. 

''And  the  said  A.  B.  complains  and  avers  as  follows:" 
(Here  follow  statements,  allegations,  averments,  of  all 

ultimate,  constituent  facts  showing: 

(a)  A  right  recognized  by  equity  courts,  and  in  a 
clearly  described  subject-matter,  and  a  right  possessed 
by  complainant,  and  not  barred  by  lack  of  residence,  or 
by  laches,  or  by  statutes  of  limitation,  or  statute  of 
frauds,  nor  by  facts  of  estoppel,  or  of  ''unclean  hands," 
nor  by  omission  of  "offer  to  do  equity." 

(b)  A  clearly  described  wrong,  or  violation  of  that 
right,  actual  or  threatened,  not  remediable  at  law,  with, 
the  names  of  the  defendants  liable  for  doing  or  threat- 
ening the  wrong. 

(c)  A  substantial  injury,  damage,  or  loss  of  prop- 
erty, actual  or  threatened,  to  complainant,  or  to  his  fam- 
ily, or  to  his  property,  growing  out  of  the  subject-matter 
of  the  suit. 

(d)  The  full  names  of  all  other  persons  as  defend- 
ants, who  have  or  claim  to  have,  rights  in  the  subject- 
matter  of  the  suit,  which  rights  may  be  affected  by  a 
decree. 

(e)  The  full  names,  citizenship  and  residence  by  state 

2 — The     names     of     the     parties  See  also  U.   S.  Eq.  Rule   25. 

should  not  occur  in  the  caption  or  3 — U.  S.  Eq.  Rule  25;  1  Smith  Ch,, 

title  of  an  original   bill.      (Jackson  82;    1    Barber,    35;    Story   5th   Ed, 

V.   Ashton,   8   Pet.   148;    Spencer  v.  Sec.    20. 
Goodlett,    104    Tenn.    648).      Such 
caption  is  used  only  in  the  pleadings 
that  follow  after  filing  the  bill. 


36  EQUITY  riJLlULN'G  AJS'D  PRACTICE 

and  county  of  all  parties.  If  there  are  persons  other 
than  those  named  as  defendants  who  appear  to  be  proper 
(necessary)  parties,  the  bill  should  state  why  they  are 
not  made  parties,  as  that  they  are  not  within  the  juris- 
diction of  the  court,  or  cannot  be  made  parties  without 
ousting  the  jurisdiction.^* 

(f)  All  other  principal  facts  necessary  to  constitute 
the  claims  and  to  justify  an  equity  court  in  granting 
each  particular  relief  prayed  for. 

In  the  federal  courts,  if  any  party  be  under  any  dis- 
ability, the  fact  must  be  stated  f^  also  every  bill  brought 
by  stockholders  of  a  corporation  against  the  corporation 
and  other  parties,  founded  upon  rights  which  may  prop- 
erly be  asserted  by  the  corporation,  must  under  oath 
allege  the  plaintiff  was  a  shareholder  at  the  time  of  the 
transaction  of  which  he  complains,  and  must  make  the 
other  certain  allegations  required  by  federal  rule-^*" 

(4)  The  Confederating  Part,  averring  that  **the  de- 
fendants named,  confederated  with  diverse  other  per- 
sons, unknown,"  and  asking  ''leave  to  join  such  other 
persons  when  discovered. ' ' 

This  part  of  the  bill  is  obsolete,  because  now  new 
parties  can  be  added  by  amendment  to  the  bill.^ 

(5)  The  Charging  Part,  additional  charges  or  state- 
ments, used  for  two  purposes : 

(a)  To  anticipate  the  defenses  expected  in  defend- 
ant's answer  and  to  avoid  or  rebut  them  with  counter- 
charges. This  is  a  sort  of  special  replication  in  anticipa- 
tion of  the  defense  expected. 

For  example :  A  charge  ' '  that  defendant  will  pretend 
to  have  written  release  of  all  claims ;  but  plaintiff  charges 
and  avers  that  such  pretended  release  was  obtained  by 
the  fraudulent  acts  of  said  defendant,  as  follows,  etc." 

3a — U.  S.  Eq.  Eule  25.  4 — Supervisors    v.    Mississippi    B. 

3b— U.  S.  Eq.  Eule    25.  R.  Co.,  21  111.  367;   Story  5th  Ed., 

3c— U.  S.  Eq.  Eule  27.  Sec.  29. 


BILLS  IN  EQUITY  37 

This  sort  of  a  charging  part  is  used  for  the  purpose  of 
avoiding  later  filing  a  special  replication  or  (where 
special  replications  are  abolished)  an  amendment  to  the 
bill,  to  meet  a  defense  expected  in  an  answer.  Com- 
plainant may  omit  this  formal  charging  part,  and  use 
the  stating  part  of  his  bill  for  the  same  purpose.^ 

(b)  To  charge  or  state  some  of  the  evidential  facts 
which  complainant  relies  on  to  prove  the  main  facts  of 
his  case  previously  averred  in  the  stating  part. 

This  is  done  to  elicit  more  exact  discovery,  to  avoid 
vague  and  general  answers,  which  might  othermse  be 
given  to  the  more  general  facts  forming  the  stating  part 
of  a  bill.  A  defendant  must  answer  fully  all  facts  al- 
leged, whether  ultimate  facts  stated,  or  evidential  facts 
charged.^-  Thus  in  a  charging  part  the  evidential  facts 
may  repeat,  in  the  form  of  items  of  evidence,  the  story 
told  in  the  stating  part;  and  further  on,  the  interroga- 
tory part  of  the  bill,  in  the  form  of  a  series  of  questions, 
may  again  repeat  the  story.  Hence  the  criticism  that  a 
bill  in  chancery  sometimes  ''is  a  story  thrice  told." 

Having  once  in  the  stating  part  of  his  bill  alleged  the 
necessary  main  facts  constituting  a  complete  cause  of 
action,  a  pleader  is  not  compelled  to  repeat,  nor  to  add 
to,  the  story  by  a  charging  part  charging  any  items  of 
evidence,  nor  by  a  special  interrogatory  part  asking  a 
series  of  special  interrogatories.  He  will  omit  these 
additional  parts  unless  he  feels  sure  that  certain  strong 
evidential  facts  charged,  or  certain  pointed  interroga- 
tories, cannot  be  evaded  nor  avoided  by  defendant  with 
success.  Since  interrogatories  must  always  be  based 
upon  facts  alleged  in  the  bill,  a  pleader  may  need  to 
charge  certain  evidential  facts,  if  not  already  distinctly 
stated  in  the  stating  part,  in  order  to  form  a  basis  for 
desired  interrogatories. 

5— U.  S.  Eq.  Eule  25;  Old  U.  S.  6— Bank  v.  Levy,  3  Paige,  N.  Y. 

Eq.  Eule  21.  606. 


38  EQUITY  PLEiUJINQ  AND  PRACTICE 

(6)  The  Jurisdiction  Part,  averring  that  complain- 
ant's case  is  within  the  jurisdiction  of  an  equity  court, 
and  tliat  except  in  a  court  of  equity  he  has  no  remedy. 

This  clause  need  not  be  used,  and  never  was  neces- 
sar}\  If  the  stating  part  of  the  bill  does  not  show  a 
proper  case  for  equity,  this  clause  will  not  help,  and  its 
omission  does  no  haiTa.'^ 

But  in  the  federal  courts  because  of  their  special  and 
limited  jurisdiction,  the  bill  must  contain  a  short  and 
plain  statement  of  the  special  federal  grounds  upon  which 
the  court's  jurisdiction  depends.'* 

(7)  The  Interrogatory  or  Discovery  Part:  (1)  A 
general  interrogation  or  prayer  that  defendants  answer 
each  matter  stated  in  the  bill  ''as  fully  as  if  specially 
interrogated  thereon,  not  only  according  to  positive 
knowledge,  but  upon  their  best  recollection,  information 
and  belief;"  to  which  general  prayer  to  answer  the  bill, 
the  pleader  may  add  (2)  a  special  prayer  to  answer  a 
particular  list  of  interrogatories,  which  the  pleader  may 
set  forth  in  this  part  of  the  bill.^ 

The  general  prayer  for  answer  is  usually  called  "The 
General  Interrogatory;"  and  the  list  of  questions,  if 
here  included,  is  called  "The  Special  Interrogatories." 

Whether  this  part  of  the  bill  consists  of  the  general 
interrogatory  alone,  or  of  both  the  general  and  special 
interrogatories,  it  is  the  part  of  the  bill  which  seeks  and 
obtains  discovery  from  the  defendants,  to  disclose  the 
full  truth  in  their  answer,  as  to  all  matters  stated  in  the 
bill.  And  this  is  true  whether  the  bill  be  one  for  discov- 
ery only,  or  a  bill  for  both  relief  and  discovery,  as  is 
more  usual.^  The  general  interrogatory  should  never 
be  omitted,  but  the  special  interrogatories  may  be 
omitted.    This  general  prayer  for  a  full  answer,  by  its 

7— Botsford    v.    Beers,    11    Conn.  8—1   Dan.   486. 

369;  Old  U.  S.  Eq.  Rule  21.  9— Hopkins    v.    Medley,    97    111., 

7a— U.  S.  Eq.  Rule  25.  414. 


r  BILLS  IN  EQUITY  39 

own  force,  compels  the  defendant  to  answer  fully,  to 
admit  or  to  deny  each  material  allegation  of  fact  set 
forth  in  the  bill,  with  full  circumstances  and  details.  A 
defendant  may  deny  knowledge  or  information  or  recol- 
lection concerning  a  certain  allegation,  and  declare  him- 
self unable  to  form  any  belief  concerning  it;  and  there- 
fore, he  may  deny  such  allegation,  and  call  for  strict 
proof  thereof;  but  he  must  in  this  way,  or  by  admission 
or  denial,  answer  every  allegation  in  the  bill.  The  pecu- 
liar double  nature  of  an  answer  in  chancery,  containing 
as  it  does,  full  responsinve  disclosures,  as  well  as  mat- 
ters of  defense,  so  different  from  an  answer  at  law, 
which  need  answer  nothing  so  long  as  it  sets  up  a  de- 
fense— is  due  to  this  general  comprehensive  prayer  for 
discovery  in  the  chancery  bill.^° 

The  special  interrogatories  are  used,  if  desired  by  the 
pleader,  for  the  purpose  of  more  exact  discovery  from 
the  defendant  as  to  facts  which  the  pleader  thinks  can- 
not be  evaded  or  escaped  by  the  answer.  Special  inter- 
rogatories must  be  based  upon  matters  of  fact  stated  in 
either  the  stating  part  or  the  charging  part  of  the  bill. 

It  should  be  noted  that  in  the  old  federal  equity  prac- 
tice, the  old  rules,  39  and  40,  dispensed  with  full  answers 
where  special  interrogatories  were  omitted,  if  the  an- 
swer filed,  set  forth  a  defense  in  bar  or  to  the  merits,  such 
as  might  be  set  forth  in  a  plea.  Therefore,  in  the  old  fed- 
eral equity  practice,  if  a  pleader  desired  full  responsive 
,  disclosures  in  the  answer,  he  must  include  a  list  of 
special  interrogatories. 

Under  the  new  federal  practice,  new  rule  30  requires 
the  defendant  to  set  out  his  defense  to  each  claim  as-' 
serted  by  the  bill,  specifically  admitting  or  denying  or 
explaining  the  facts  upon  which  the  plaintiff  relies.  Thus 
under  the  new  rules,  it  would  seem  that  full  answers 
must  be  made  to  each  allegation  in  the  bill.    Special  in- 

10— Hopkins    v.    Medley,    97    111. 
414;  2  Dan.  246. 


40  EQUITY  PLEADING  AND  PRACTICE 

terrogatorios  are  separate  from  the  bill.  Rule  58  pro- 
vides that  plaintiff  may  file  interrogatories  after  filing 
his  bill  and  defendant  may  file  interrogatories  after  fil- 
ing his  answer,  and  such  interrogatories  filed  by  either 
party  must  be  answered  under  oath. 

(8)  The  Prayer  for  Relief,  wherein  the  complain- 
ant prays  the  court  to  order  and  decree  the  defendant 
to  do,  or  refrain  from  doing,  the  certain  things  men- 
tioned in  the  prayer,  and  wherein  complainant  also  prays 
in  general  ''for  such  other  and  further  relief  as  may  be 
just  and  equitable." 

If  the  specific  prayer  is  erroneous,  the  court  will,  under 
the  general  prayer,  grant  such  relief  as  may  be  proper 
upon  the  case  stated  in  the  bill.^^  In  the  absence  of  a 
general  prayer  this  might  not  be  done.^^  But  in  modern 
practice  only  a  statement  of  and  prayer  for  the  special 
relief  desired,  is  necessary.^^*  A  declaration  at  common 
law  contains  no  prayer  for  relief.  In  equity  the  kind  of 
relief  desired  must  be  prayed.  In  the  federal  courts 
alternative  forms  of  relief  may  be  prayed.^  ^^ 

If  an  injunction  is  sought,  complainant  in  this  part 
should  specifically  pray  also  for  a  decree,  enjoining  the 
particular  acts  complained  of  in  the  stating  part  of  his 
bill;  because  the  writ  of  injunction,  if  obtained,  must  fol- 
low this  prayer  and  be  limited  by  it.  The  general  prayer 
for  relief  ordinarily  is  not  a  sufficient  basis  for  a  writ 
of  injunction.^^  A  writ  of  ne  exeat  or  any  other  special 
ivrit  or  order,  if  sought  by  complainant,  should  be 
prayed  for  in  the  prayer  for  relief.^  ^  But  the  statutes 
of  many  states  permit  the  writ  of  ne  exeat  to  issue  upon 
special  petition,  whether  or  not  prayed  for  in  the  bill. 

(9)  Prayer  for  Process  or  Summons,  whereby  com- 

11—2  Dan.  489.  12a— U.  S.  Eq.  Kule  25. 

12— Driver    v.    Fortner,  5    Port.  12b— U.  S.  Eq.  Eule  25. 

Ala.  9;  Wilkin  v.  Wilkin,  1  Johns.  13— Story  Eq.  PI.,  Sec.  41. 

Ch.  111.  14— U.  S.  Eq.  Eule  25. 


BILLS  IN  EQUITY  41 

plainant  prays  the  court  to  grant  issuance  of  process  or 
writ  of  summons,  commanding  the  defendants  to  appear 
and  answer  the  bill;  and  whereby  complaint  also  prays 
the  court  to  grant  other  special  writs,  if  desired,  like  the 
writ  of  injunction,  or  the  writ  of  ne  exeaty^ 

The  prayer  for  process  must  name  the  defendants 
against  whom  process  or  summons  is  to  issue.^^  The 
prayer  for  the  writ  of  injunction  should  also  in  this  part 
name  or  describe  the  persons  against  whom  the  writ 
is  to  issue. 

If  any  defendants  are  infants,  or  are  otherwise  under 
guardianship,  the  fact  should  be  stated  or  recited,  so 
the  court  may  make  order  thereon  as  justice  may  re- 
quire upon  the  return  of  process.^ '^ 

U.  S.  Equity  Rule  25  makes  it  unnecessary  to  pray  the 
court  to  grant  issuance  of  process,  or  summons.  In  fed- 
eral practice,  this  prayer  for  process  may  be  omitted. 

SiGNATUEE  AND  VERIFICATION.  The  above  is  a  brief  sum- 
mary of  the  nine  parts  usually  found  in  a  bill  in  chancery. 
To  these  nine  parts  may  be  added  a  signature  part,  being 
the  signature  of  the  complainants  and  of  their  counsel; 
and  there  may  also  be  added  a  verification  part,  being  the 
affidavit  verifying  the  truth  of  the  facts  mentioned  in  the 
bill,  in  cases  where  bills  are  required  to  be  verified  under 
oath.  A  bill  is  usually  signed  by  complainant,  and  should 
always  be  signed  by  the  solicitor  for  the  complainant.^"* 
When  an  injunction,  restraining  order,  or  a  writ  of  ne 
exeat,  is  prayed,  the  bill  should  be  sworn  to  by  the  com- 
plainant. If  special  relief  during  the  suit  is  desired  in 
the  federal  courts,  the  bill  must  be  sworn  to  by  some  one 
having  knowledge  of  the  facts  upon  which  such  relief  is 
asked.^^  Also  bills  de  bene  esse,  bill  to  perpetuate  testi- 
mony, bill  of  interpleader,  bill  of  review,  for  newly  dis- 
covered evidence,  and  a  bill  where  a  corporation  is  com- 

15— story  Eq.  PI.,  Sec.  44.  I7a-U.  S.  Eq.  Rule  24. 

16—1  Smith  Ch.  85;  1  Barb.  38;  18— U.   S.   Eq.  Rule   25. 

17— U.  S.  Eq.  Rule  25.  i 


42  EQUITY  PLEADING  AND  PRACTICE 

plainant,  should  be  verified.^^''  Otherwise,  unless  a  stat- 
ute requires  it,  no  oath  to  the  bill  is  necessary  if  answer 
under  oath  is  waived. ^'^ 

§  53.  Parts  of  a  bill,  which  may  be  omitted.  Though 
these  nine  parts  are  usually  found  in  a  bill,  neverthe- 
less,— 

The  confederacy  part  should  be  omitted; 

The  charging  part  may  be  used  or  not,  as  deemed  ad- 
visable by  the  pleader; 

The  jurisdiction  part  should  be  omitted,  except  the 
special  new  kind  of  jurisdiction  clause  required  by  Fed- 
eral Equity  Rule  25. 

The  general  interrogatory  part  must  always  be  used, 
but  the  special  interrogatory  part,  only  when  deemed 
desirable  by  the  pleader.  In  the  United  States  equity 
courts,  it  would  seem  that  special  interrogatories  can  be 
filed  by  a  plaintiff  only  by  a  separate  additional  pleading 
after  the  bill  is  filed.^o 


18a— Fletcher     Eq.     PL     &     Pr.,  19—1  Barb.  44. 

See.  83.  20— U.  S.  Eq.  Eule  58. 


CHAPTER  VI 

The  Stating  Part  of  a  Bill 

§  54.  The  stating  part  of  a  bill.  The  stating  part  of 
a  bill  in  chancery  is  the  most  important  part  of  a  bill, 
and  an  additional  chapter  is  needed  for  fuller  treatment 
of  this  part. 

§  55.  The  facts,  the  law,  the  court's  mandate.  Every 
case  in  equity  involves  (1)  the  court's  determining  and 
declaring  the  main  facts,  findings  or  conclusions  of  fact; 
(2)  the  court's  determining  and  declaring  the  legal  mean- 
ing, effect,  consequences  of  the  main  facts,  (the  rights 
and  duties  growing  out  of  the  facts,  the  principles  of  law 
applying  to  the  facts),  findings  or  conclusions  of  law, 
upon  the  facts;  (3)  the  court's  enforcing,  ordering,  the 
rights  and  duties  growing  out  of  the  facts,  enforcing  the 
law  of  the  facts. 

§  56.  Principal  duties  of  the  trial  lawyer.  A  careful 
lawyer  will  first  possess  himself  of,  and  afterwards  keep 
in  hand,  the  clear  evidence  of  all  necessary  facts  consti- 
tuting his  claim  or  defense.  He  will  then  clearly  plead 
the  main  facts  which  make  his  case  or  defense.  He  will 
then  in  court  clearly  prove  the  pleaded  main  facts  by  his 
evidence.  He  will  then  present  to  the  judge  a  prepared 
decree  clearly  finding  those  main  facts  in  form  as 
pleaded,  also  clearly  finding  the  law  (or  rights  and 
duties  involved  in  those  facts),  and  clearly  ordering  the 
particular  acts  or  conduct  necessary  to  enforce  such 
rights  and  duties.  The  careful  lawyer  will  be  sure  he 
has  the  evidence  of  the  necessary  facts;  he  will  be  sure 

43  i 


44  EQUITY  PLEADING  AND  PRACTICE 

to  plead  the  facts  correctly;  he  will  be  sure  to  prove 
them  by  competent  evidence;  he  will  be  sure  his  decree 
states  the  facts  as  findings,  and  also  states  the  findings 
of  law,  and  that  the  ordering  part  enforces  their  legal 
consequences.  His  complaint  or  defense  must  tally  with 
each  fact  necessary  to  constitute  his  claim  or  defense, 
the  proof  later,  must  tally  with  each  allegation  of  fact  in 
his  pleading;  and  then  the  decree  must  tally  with  the 
allegations  and  proofs.  These  requirements  are  funda- 
mental.^ 

§  57.  It  may  be  well  to  draft  the  decree  before  the  bill. 
Perhaps  a  lawyer  should  write  his  decree  before  he 
draws  his  bill.  A  properly  drafted  decree  contains  the 
whole  case  from  beginning  to  end.  After  writing  a 
decree  finding  tlie  facts,  finding  the  rights  and  duties 
involved  in  those  facts,  and  ordering  the  acts  to  be  done 
which  enforce  those  rights,  a  lawyer  will  thoroughly 
understand  his  case ;  otherwise,  he  may  not  see  his  whole 
case,  and  mistakes  may  occur.  The  decree  may  as  well 
be  written  first  as  last,  and  nothing  prevents  more  mis- 
takes or  better  clears  the  way.  The  decree  certainly 
should  be  drafted  before  entering  upon  the  proofs,  be- 
cause its  completion  usually  brings  to  light  the  need 
of  additional  or  amended  allegations  in  the  bill,  with 
which  proofs  must  correspond,  and  thus  mistakes  or 
omissions  are  avoided. 

Thus  a  lawyer's  chief  business  is  the  stating  and  prov- 
ing of  facts.    The  facts  point  out  the  law  involved. 

§  58.  Only  ultimate  facts  should  be  pleaded  except  in 
charging  part.  In  stating  the  facts,  only  the  main  or 
ultimate  facts,  which  constitute  the  claim  or  defense, 
should  be  alleged,  without  stating  the  circumstances  or 
the  evidence  of  such  main  facts ;  ^  but  evidential  facts 

1— Crocket  v.  Lee,  7  Wheat.  522.      27  Mich.  257;  Brown  v.  City  of  Au- 
2— Story's  Eq.  PI.  Sec.  28;  U.  S.      rora,  109  HI.   165;   Stone  v.  Ferry, 
Eq.  Eule  25;   Wilson  v.  Eggleston,      239  111.  606. 


THE  STATING  PART  OP  A  BILL  45 

may  be  stated  in  the  charging  part  of  the  bill,^  and  evi- 
dential facts  must  be  pleaded  in  two  exceptional  allega- 
tions, namely,  of  fraud,  and  of  usury.  Ultimate  facts 
are  those  facts  which  immediately  lead  to  the  conclu- 
sions of  law  in  the  case.  An  ultimate  fact  may  be  a  sim- 
ple-, evidential  fact,  or  it  may  be  a  complex  fact  or  con- 
clusion of  fact  based  upon  subordinate  evidential  facts; 
and  an  ultimate  fact  may  be  based  upon  subordinate 
facts  and  laws,  like  the  fact  of  marriage.* 

§  59.  Conclusions  of  law,  the  legal  rights  and  duties 
growing  out  of  the  facts,  should  seldom  be  alleged.  The 
pleader  should  avoid  stating  the  conclusions  of  law  or 
legal  consequences  involved  in  the  facts,  except  only 
when  necessary  to  add  to  the  clearness  of  facts  stated, 
which  warrant  the  conclusion.  Legal  conclusions,  or 
findings  of  law,  are  for  the  court  to  make.  A  pleader 
should  not  state  them  unless  the  court  might  otherwise 
miss  the  legal  effects  of  facts  which  are  stated.^  Stat- 
ing conclusions  of  law  is  sometimes  necessary  for  clear 
pleading;^  and  if  accompanied  by  the  facts  which  war- 
rant them,  they  do  no  harm  and  at  the  worst  must  be 
treated  as  a  surplusage.  Courts  encourage  the  pleading 
of  the  legal  effect  of  instruments  rather  than  pleading 
them  in  w^ords  and  figures  fully.  But  copies  of  the  in- 
struments should  also  be  made  a  part  of  the  bill  by 
reference. 

§  60.  Exhibits  should  be  annexed.  If  a  bill  makes  an 
instrument  a  part  thereof  without  annexing  a  copy,  or 
setting  forth  the  contents,  it  is  bad  on  demurrer.'^  The 
substance  of  an  exhibit  should  be  set  forth,  even  if  the 

3— Bank  v.  Levy,  3  Paige,  N.  Y.  573;  Crane  v.  Shaefer,  140  111.  App. 

606.  647. 

4— Koch  V.  Arnold,  242  111.  208.  7— Martin    v.    McBryde,    3    Ired. 

5— S  Dan.   22.  Ch.  531. 
6— Allen    v.    O 'Donald,    23    Fed. 


46  EQUITY  PLEADING  AND  PRACTICE 

exhibit  is  annexed.  Exhibits  forming  part  of  the  bill 
will  aid  defective  statements  in  the  bill.^ 

§  61.  The  allegations  are  the  foundations  of  the  proofs 
and  of  the  decree.  A  party  cannot  have  relief  upon  a 
case  not  stated  in  his  bill.  All  ultimate  facts  intended 
to  be  proved  must  be  alleged;  otherwise  evidence  cannot 
be  received  of  the  facts.^  Secundum  allegata  et  pro- 
bata, the  decree  in  the  case  must  correspond  with  the 
allegations  and  the  proofs. 

§  62.  All  necessary  facts  should  be  averred,  clearly, 
and  positively.  The  party  seeking  the  aid  of  a  court 
of  equity,  in  his  bill  must  aver  all  the  facts  neces- 
sary to  entitle  him  to  its  aid.  His  right,  title  and  inter- 
est, should  be  stated  with  accuracy  and  clearness.  The 
citizenship  and  residence,  by  state  and  county,  of  com- 
plainants and  defendants,  should  be  distinctly  averred, 
because  it  is  usually  one  of  the  grounds  of  the  court's 
jurisdiction.^'^  If  an  allegation  be  capable  of  two  mean- 
ings, the  one  most  unfavorable  to  the  pleader  will  be 
adopted.  The  material  allegations  of  the  bill  must  be 
clearly  and  positively  averred,  and  in  a  traversable  form 
and  not  "upon  information,"  especially  if  they  are  pecu- 
liarly within  the  knowledge  of  the  party  pleading." 

§  63.     Allegations  upon  information  and  belief.    If  the 

allegations  are  not  presumptively  within  the  knowledge 
of  the  party  pleading,  they  may  be  pleaded  upon  infor- 
mation and  belief.  An  allegation  based  upon  informa- 
tion should  allege  complainant's  belief  in  the  truth  of  the 
information,  and  base  the  statement  of  facts  upon  such 
belief.  For  example,  ''Complainant  is  informed  and 
believes,  and  therefore  states  the  fact  to  be,  that  defend- 
ant on  May  7,  1911,  did  sign,  seal  and  deliver,  "  etc. 

8— Benneson   v.    Savage,    130    111.  10— Turner   v.   Bank,  4  Dall.   8. 

3.!)2.  11 — McConnoughy      v.      Jackson, 

9— Crockett     v.     Lee,     7     Wheat.  101  Calif.  265. 
522;  Story's  Eq.  PI.  Sec.  28. 


THE  STATING  PART  OF  A  BILL  47 

§  64.  Allegations  of  time  and  place.  The  time  and 
place  of  each  fact  need  not  be  stated  in  equity  unless  the 
time  or  the  place  is  material.  At  common  law,  time  and 
place  must  be  alleged  with  every  occurrence  of  fact,  else 
the  pleading  would  be  bad  in  form. 

§  65.  Allegation  of  defendant's  claims.  Where  the 
extent  and  character  of  defendant's  rights  are  more 
within  the  knowledge  of  defendant,  it  is  sujBScient  to  al- 
lege generally  that  the  defendant  has  or  claims  to  have, 
some  rights  in  the  subject-matter  of  the  suit,  leaving  it 
to  the  defendant  to  disclose  in  his  answer  the  nature  and 
extent  of  such  rights. 

§  66.  Bill  must  cover  entire  controversy.  The  bill 
must  cover  the  whole  subject  in  dispute  so  as  not  to 
expose  the  defendant  to  be  harassed  by  another  suit 
when  one  suit  may  suffice.^ ^ 

§  67.  Offer  to  do  equity.  Complainant  must  allege  in 
his  bill  that  he  has  done  or  is  ready  to  perform,  every 
act  necessary  to  entitle  him  to  the  relief  he  seeks ;  or  he 
should  state  a  sufficient  excuse  for  its  non-performance. 
It  is  a  maxim  of  equity  that  he  who  seeks  equity  must 
do  equity.  In  stating  his  offer  to  do  equity  the  pleader 
should  set  forth  precisely  the  things  he  offers  to  do. 

§  68.  Bill  should  not  impute  laches.  When  a  bill  is 
filed  long  after  the  cause  of  action  accrued,  the  facts 
relied  upon  as  excusing  the  delay  must  be  set  forth  in 
the  bill;  otherwise  the  bill  will  impute  laches;  and  may 
be  attacked  by  demurrer  or  by  plea,  or  by  special  state- 
ments in  an  answer,  mentioning  the  laches,  or  the  court 
of  its  own  motion  may  refuse  to  consider  the  case.*^ 

§  69.  Basing  suit  on  alternative  grounds.  The  stating 
part,  may  base   the   cause   of  action  upon   alternative 

12— Purefoy  v.  Purefoy,  1  Vern.  13— Sullivan  v.  Eailroad,  94  U.  S. 

29  J  1  Barb.  40.  806. 


48  EQUITY  PLE.U)ING  AND  PRACTICE 

grounds,  if  the  true  facts  are  not  known  to  complainant, 
so  that  if  one  ground  fails,  complainant  may  rely  upon 
the  other,  and  those  two  grounds  may  be  inconsistent 
with  each  other.^^ 

§  70.  Evidential  facts  and  not  general  charges  should 
be  pleaded  to  allege  fraud  or  usury.  Where  relief  is 
sought  on  the  ground  of  fraud  or  of  usury,  general 
charges  should  be  followed  by  allegations  in  which  the 
circumstances  and  facts  upon  which  such  charge  is 
founded  are  fully  and  specifically  stated.  Fraud  cannot 
be  alleged  by  mere  statements  of  conclusions  or  infer- 
ences, as  for  instance,  the  statement  that  the  defendant 
obtained  a  certain  property  by  ''fraud  and  misrepresen- 
tation." There  must  be  a  distinct  averment  of  the  facts 
and  circumstances  constituting  the  inference  or  conclu- 
sion of  fraud,  so  that  the  court,  if  there  were  no  appear- 
ance, could  from  the  allegation  and  the  proof  supporting 
them,  find  that  the  fraud  had  been  committed,  and  so  that 
the  defendant  may  be  able  to  answer  and  explain  such 
facts  and  defend  the  charge.  An  allegation  of  fraud 
made  upon  information  and  belief  cannot  be  sustained, 
unless  the  facts  upon  which  the  belief  is  founded  are 
stated  in  the  pleading. 

§  71.  Oyer  in  equity.  The  practice  of  allowing  oyer 
is  unusual  in  chancery.^^  Oyer  means  the  right  to  see, 
or  hear  read,  some  document  in  court  as  a  part  of  the 
pleadings.  In  federal  practice  the  court  rules  provide 
for  compelling  the  production  or  inspection  of  documents 
which  are  in  the  control  of  either  party  and  contain  mate- 
rial evidence. 

§  72.  In  federal  practice,  charging  part,  may  be  placed 
in  stating  part  of  bill  In  the  federal  equity  practice,  old 
U.  S.  Equity  Rule  21  permitted  the  charging  part  of  the 

14— Varick  v.  Smith,  5  Paige  Ch.  15— Hamilton  v.  Downer,  152  IlL 

Rep.   137.  651. 


THE  STATING  PART  OF  A  BILL  49 

bill  to  be  omitted,  and  permitted  such  charging  part  of  the 
bill  to  be  incorporated  in  the  stating  part  of  the  bill. 
That  is  to  say,  the  old  federal  rule  permitted  the  com- 
plainant in  the  stating  part  of  his  bill  to  anticipate  an  ex- 
pected defens'e,  and  to  allege  any  matter  necessary  to 
explain  or  avoid  such  expected  defense.  There  is  noth- 
ing in  the  new  rules  to  prevent  such  practice ;  and  in  any 
other  jurisdiction  it  can  do  no  harm  to  incorporate  a 
charging  part  in  the  stating  part  of  the  bill.  Of  course  the 
complainant  may,  if  he  chooses,  omit  to  anticipate  a  de- 
fense or  to  include  a  charging  part.  He  may  wait  until  the 
answer  is  filed  which  states  the  defense,  and  then  he  may 
meet  such  new  matter  of  defense  by  filing  an  amendment 
to  the  bill.  In  federal  practice  under  new  rule  31  any 
new  or  affirmative  matter  in  an  answer  is  deemed  to  be 
denied  by  plaintiff  without  a  replication,  and  without  his 
filing  an  amendment  of  his  bill  to  meet  such  new  matter ; 
and  the  cause  is  deemed  at  issue  by  the  filing  of  the 
answer. 

§  73.  Multifariousness.  The  bill  must  not  be  multi- 
farious. A  bill  is  multifarious  (1)  when  it  unites  several 
distinct  and  incongruous  matters  between  the  same  par- 
ties ;  or  (2)  when  it  unites  several  matters,  in  all  of  which 
th-e  complainants  on  the  one  side,  or  the  defendants  on 
the  other  side  do  not  have  a  joint  and  common  interest.^*' 

A  bill  to  avoid  a  multiplicity  of  suits  is  an  exception  to 
the  general  rule  against  multifariousness.  The  rule  it- 
self is  no  hard  and  fast  rule.  It  rests  somewhat  upon 
the  discretion  of  the  court,  depending  upon  considera- 
tions of  convenience  to  the  court,  avoidance  of  a  multipli- 
city of  suits,  and  avoidance  of  hardship  to  the  parties. ^^ 

The  objection  of  multifariousness  is  waived  by  answer- 
ing and  submitting  to  trial  on  the  merits.'^ 

16— Metcalf    v,    Cady,    90    Mass.  17— U.  S.  Eq.  Rule  26. 

587;   Walker  v.  Powers,   104  U.  S.  18— Bird  v.  Bird,  218  111.  158. 
245;  Story's  Eq.  PI.  See.  271;  Gage 
V.  Parker,  103  111.  528. 
E.  P.— 4 


50  EQUITY  PLEADING  AND  PRACTICE 

§  74.  Impertinence.  A  bill  must  not  contain  imperti- 
nent matter.  Impertinent  matter  is  that  wliicli  is  wholly 
irrelevant  and  nnnecessary,  and  thus  tends  to  make  the 
record  improperly  voluminous  and  expensive. ^^ 

§  75.  Scandal.  A  bill  should  not  contain  scandalous 
matter.  Scandalous  matter  is  irrelevant  or  impertinent 
matter  which  is  also  libelous  or  defamatory  in  character. 
In  order  to  be  objectionable  the  matter  must  be  irrele- 
vant as  well  as  scandalous,  for  it  may  often  be  necessary, 
in  case  of  fraud,  to  make  allegations  very  injurious  to  the 
character  of  the  parties  concerned;  ''nothing  which  is 
positively  relevant  to  the  merits  of  the  cause,  however 
harsh  or  gross  the  charge  may  be,  can  be  correctly 
treated  as  scandalous.  "2** 

The  objection  that  a  bill  is  impertinent  or  scandalous, 
is  made  by  exceptions  in  writing  which  point  out  the 
scandalous  matter.  The  objection  is  not  made  by  filing 
a  demurrer.  These  exceptions  are  filed  to  the  bill,  and 
state  what  parts  are  objected  to  on  these  grounds.  "^^ 
When  such  objection  is  made  the  court  refers  the  matter 
to  a  master  in  chancery  for  investigation,  and  if  the 
charge  is  sustained,  impertinent  and  scandalous  matter  is 
ordered  to  be  stricken  out  and  the  plaintiff  will  be  re- 
quired to  pay  costs.  If  the  scandal  is  gross  and  wanton, 
the  counsel  who  is  guilty  of  it  may  also  be  subject  to  the 
discipline  of  the  court  for  a  violation  of  his  duty  as  an 
officer  of  the  court.  Any  unnecessary  allegation  bear- 
ing cruelly  upon  the  moral  character  of  an  individual  is 
scandalous.  Neither  suitors  nor  solicitors  should  be 
allowed  to  manifest  their  personal  feelings  upon  the 
records  of  the  court.^^ 
In  the  federal  practice  the  right  to  except  to  pleadings 

19— Woods    V.  Morrell,    1    Johns.  21— Stirratt  v.  Excelsior  Mfg.  Co., 

^^-  103.  44  Fed.  Eep.  142. 

20— Story's  Eq.   PI.  Sec.   269.  22— Coffin  v.  Cooper,  6   Ves.  514. 


THE  STATING  PART  OP  A  BILL  51 

for  scandal  or  for  impertinence  does  not  obtain,  but  the 
court  may  itself  or  upon  motion,  strike  out  any  redun- 
dant, impertinent  or  scandalous  matter.^^ 

23— U.  S.  Eq.  Eule  21. 


CHAPTER  Vn 
Bills  not  Original 

§  76.  Supplemental  bills.  A  supplemental  bill  is  one 
brought  by  the  plaintiff  in  the  original  suit  to  introduce 
some  material  fact  affecting  the  case  which  has  occurred 
since  the  beginning  of  the  suit ;  or  to  introduce  some  new 
party  who  has  become  necessary  since  the  beginning 
of  the  suit.^  If  the  original  bill  shows  no  ground  for 
relief,  the  defect  cannot  be  cured  by  a  supplemental  bill 
setting  up  matters  that  have  arisen  since  the  commence- 
ment of  the  suit.- 

Matters  which  occurred  prior  to  the  filing  of  the  bill 
and  not  stated  therein  should  be  brought  into  the  suit 
by  amendment  to  the  bill ;  but  matters  arising  subsequent 
to  the  filing  of  the  original  bill  must  be  introduced  by  a 
supplemental  bill.  The  supplemental  bill  must  be  ger- 
mane to  the  original  biU. 

In  federal  practice,  upon  the  application  of  either  party 
the  court  may  permit  him  to  file  a  supplemental  plead- 
ing alleging  material  facts  occurring  after  his  former 
pleading,  or  of  which  he  was  ignorant  when  it  was  made.^^ 

§77.  Bills  of  revivor.  A  bill  of  revivor  is  the  old 
mode  of  reviving  a  suit  which  otherwise  would  abate  by 
the  death  of  the  plaintiff  or  the  defendant.^  In  many 
states  a  bill  to  revive  on  account  of  death  is  not  necessary, 
it  being  provided  by  statute,  that  representatives  of  de- 
ceased parties  may  be  made  parties  by  suggesting  the 

1— Wilder     v.     Keeler,     3     Paige  2a— U.  S.  Eq.  Eule  34. 

Ch.  164.  3— Bowie  v.   Minter,  2  Ala.  406. 

2— Hughes  V.  Came  135  111.  519. 

52 


BILLS   NOT   ORIGINAL  53 

deaths  and  the  names  of  the  representatives  of  the  de- 
ceased, upon  the  records  of  the  court,  when  the  case  will 
proceed  as  in  other  cases.  In  the  federal  courts,  in  the 
event  of  the  death  of  either  party,  the  court  may,  in 
a  proper  case,  upon  motion,  order  the  suit  to  be  revived 
by  the  substitution  of  the  proper  parties.^* 

§  78.  Bill  of  review.^"  A  bill  of  review  is  in  the  na- 
ture of  a  writ  of  error,  and  its  object  is  to  procure  an 
examination,  or  modification,  or  reversal,  of  a  decree 
rendered  upon  a  former  bill.  It  lies  only  after  the  term 
of  court,  at  which  the  final  decree  was  entered,  has  ex- 
pired. Until  the  term  has  passed,  a  court  of  chancery 
has  full  power  over  all  the  proceedings  in  the  case,  and 
can  alter  or  annul  any  decree  or  order  and  can,  on  mere 
motion  rehear  the  case,  if  it  thinks  proper  to  do  so.  A 
bill  of  review  must  be  brought  in  the  same  court  in  which 
the  final  decree  in  the  original  suit  was  passed.  Leave 
of  court  must  be  obtained  before  a  bill  of  review  can 
be  filed.  It  lies  for  error  apparent  on  the  record,  or  for 
material  evidence  not  known  in  time  for  its  use  at  the 
former  trial  and  not  discoverable  by  reasonable  diligence 
at  that  time.  It  is  proper  after  the  term  a  decree  is  en- 
rolled. 

A  bill  of  review,  for  error  apparent  on  the  face  of  the 
record,  must  be  for  an  error  in  law,  arising  out  of  the 
facts  admitted  by  the  pleadings  or  recited  in  the  decree 
itself,  as  settled,  declared,  or  allowed,  by  the  court.  It 
cannot  be  sustained  upon  the  ground  that  the  court  has 
decided  wrongfully  upon  a  question  of  fact ;  but  if  there 
has  been  an  erroneous  application  of  law  to  the  facts 
found  by  a  decree,  the  court  may  review,  or  reverse  the 
decree,  upon  a  bill  of  review.  Errors  of  law,  against 
which  relief  can  be  had  by  a  bill  of  review,  must  be  such 
as  arise  rather  from  obvious  mistake  or  inadvertence,  ap- 
pearing on  the  face  of  the  decree,  or  at  least  of  record, 

3a— U.   S.   Eq.   Kulc   45.  3b— Shiras   Eq.   Prac. 


54  EQUITY  PLEADING  AND  PRACTICE 

tlian  from  alleged  error  in  the  deliberate  judgment  of  the 
c'hancollor  on  a  debatable  question  of  law  or  equitable 
right. ^  It  cannot  be  brought  upon  the  ground  that  the 
former  decree  was  not  supported  by  the  evidence,^  and  no 
evulence  is  admissable  as  to  the  facts  established  by  the 
original  decree.  The  error  must  appear  on  the  face  of 
the  pleadings  and  decree,  for  the  evidence  in  the  case  at 
large  cannot  be  looked  into,  to  ascertain  whether  the 
court  misunderstood  the  facts.  That  is  the  proper 
province  of  the  court  of  appeal.  But,  taking  the  facts 
to  be  as  they  are  stated  to  be  on  the  face  of  the  decree,  it 
must  appear  that  the  court  has  erred  in  point  of  law. 

Upon  a  bill  of  review  a  court  will  revise,  correct,  or 
reverse,  its  own  decree,  for  an  erroneous  application  of 
law  to  the  facts  found,  whenever  a  court  of  appeals  would 
do  so  for  the  same  cause. 

§  79.  Bill  of  review  like  a  petition  for  rehearing.  The 
only  distinction  between  a  petition  for  a  rehearing  in 
chancery,  and  a  bill  of  review  for  the  same  cause,  is,  that 
the  former  is  to  be  invoked  before  the  enrollment  of  the 
decree  and  the  adjournment  of  the  term,  while  the  latter 
is  available  after  the  decree  and  adjournment  of  the 
term.  In  the  federal  courts  if  no  appeal  lies  from  the 
decree,  then  a  petition  for  rehearing  may  be  filed  during 
the  next  term  after  decree. 

§  80.  Cross-bill.  A  cross-bill  is  one  brought  by  a  de- 
fondant  against  the  complainant  in  the  same  suit,  or 
against  other  defendants,  or  against  both,  concerning 
the  matters  in  question  in  the  original  bill,  for  the  pur- 
pose of  obtaining  discovery,  or  for  affirmative  relief. 
As  a  rule  defendant  must  answer  before  filling  his  cross- 
bill. 

Under  an  original  bill  the  court  must  simply  grant  or 
deny  the  relief  asked  for  by  the  plaintiff.     As  a  rule  it 

4— Caller  v.  ShieMs,  2  Stewart  &  5— Whiting  v.  Bank,  13  Pet.  6. 

Port.    417. 


BILLS   NOT   ORIGINAL  55 

cannot  proceed,  after  denying  relief  to  the  plaintiff,  to 
give  any  specific  relief  to  tlie  defendant,  altliougli  the 
justice  of  the  case  might  manifestly  require  it.  The 
main  purpose  of  a  cross-bill  by  defendant  is  to  ask  for 
such  relief  as  the  case  may  show  him  to  be  entitled  to, 
unless  upon  the  original  bill  the  court  can  proceed  to 
give  defendant  the  proper  relief.*' 

It  is  unnecessary  to  file  a  cross-bill  where  (on  the 
failure  of  a  bill  for  specific  performance)  it  appears  that 
earnest-money  has  been  paid  by  the  defendant;  and  a 
decree  for  the  repayment  of  the  earnest-money  will  be 
given  without  the  filing  of  a  cross-bill;^  also,  upon  a  bill 
for  an  acounting,  the  party  against  whom  the  balance  is 
found  will  be  decreed  to  pay  it  without  a  cross-bill.^ 

Where  the  matter  of  a  cross-bill  constitutes  a  defense, 
and  at  the  same  time  entitles  defendant  to  relief  beyond 
the  dismissal  of  the  bill,  and  such  relief  cannot  be  had 
by  answer,  a  cross-bill  is  proper.*^  A  cross-bill  seeks  and 
secures  relief  to  the  defendant,  beyond  a  mere  successful 
defense.^^ 

In  the  federal  courts,  a  cross-bill  is  unnecessary  to  state 
a  counter-claim  or  to  state  a  set-off.  There  the  answer 
must  state  in  short  and  simple  form  any  counter-claim 
arising  out  of  the  transaction  which  is  the  subject-matter 
of  the  suit,  and  the  answer  may  without  cross-bill,  set 
forth  any  set-off  or  counter-claim  against  the  plaintiif 
which  might  be  the  subject  of  an  independent  suit  in 
equity  against  him,  and  the  court  may  thereupon  grant 
affirmative  relief.^'' 

§  81.  Cross-bill  must  be  germane.  A  cross-bill  must 
contain  matter  germane  to  the  original  bill  and  must  not 


6— Shields  v.  Bush,   189  111.  534.  9— Paxton  v.  Stackhouse,  4  Kulp. 

7— Adams    v.    Valentine,   33   Fed.  (Pa.)  403. 

Eep.  1.  9a— Wilcox  v.  Allen,  36  Mich.  160. 

8— Acme  v.  McLure,  41  111.  App.  9b— U.  S.  Eq.  Rule  30. 
397. 


56  EQUITY  PLEADING  AND  PRACTICE 

contriulic't  allegations  in  the  answer  filed  by  the  same 
party, 

§  82.  Cross-bill  to  aver  defense  arising  after  bill  filed. 
A  defendant,  to  take  advantage  of  a  defense  arising  pen- 
dente lite,  must  assert  it  in  the  form  of  a  cross-bill  pray- 
ing a  dismissal  of  the  original;  this  procedure  taking  the 
place  of  a  plea  puis  darrein  continuance  (a  plea  filed  after 
issue  joined),  at  common  law.^*^  By  strict  practice,  this 
course  must  also  be  taken  where  the  defense  affects  only 
a  co-defendant.^^ 

In  the  federal  practice  such  a  defense  may  be  set  forth 
in  a  supplemental  pleading.^  ^'^ 

§  83.  Cross-bill  unnecessary  if  answer  attains  relief. 
In  some  states  defendants  claiming  liens,  as  in  a  fore- 
closure suit,  need  not  file  cross-bills  to  have  the  court 
determine  their  rights  to  share  in  the  surplus  proceeds  of 
sale.  Such  rights  may  be  determined  upon  answers  set- 
ting them  forth,'-  whether  such  liens  are  junior  mort- 
gage liens,  judgment  liens,  mechanic's  liens,  or  otherwise. 
In  these  jurisdictions  defendants  are  entitled,  without 
filing  a  cross-bill,  to  have  the  court  determine  the  exis- 
tence and  priority  of  such  liens,  and  to  order  the  premises 
sold  for  the  benefit  of  complainant,  and  the  proceeds  of 
sale,  after  being  applied  to  plaintiff's  debt,  to  be  distrib- 
uted among  defendant  lienors  according  to  the  priority 
of  their  liens.  But  a  cross-bill  is  necessary,  if  a  junior 
lienor  desires  affirmative  relief  beyond  merely  sharing  in 
the  surplus  proceeds  of  sale,  such  as  a  clause  in  the 
decree,  ordering  a  sale  for  his  benefit,  too,  if  his  debt  is 
not  also  paid  by  a  short  day,  as  well  as  the  debt  of  com- 
plainant. 

In  the  federal  practice  the  defendant  must  in  his  an- 

10— Mills    V.    Larrence,  186    111.  11a— U.  S.  Eq.  Rule  34. 

635.  12— Gouwens  v.  Gouwens,  222  111. 

11 — Metropolis   National  Bank   v.       223;  78  N.  E.  597. 
Sprague,  21  N.  J.  Eq.  530. 


BILLS   NOT   ORIGINAL  57 

/ 

swer,  without  cross-bill,  set  forth  any  set-off,  or  any 
counter-claim,  which  might  be  the  subject  of  an  indepen- 
dent suit  against  the  plaintiff,  and  such  answer  has  the 
same  effect  as  a  cross-suit.^^" 

§  84.  Defendants  to  cross-bill.  A  cross-bill  requires 
the  same  parties  defendant  as  would  an  original  bill  for 
the  same  purpose.  Whether  the  cross-bill  must  fail  if 
all  necessary  parties  to  it  are  not  already  parties  to  the 
original  suit,  or  whether  new  and  necessary  parties  may 
be  brought  in  on  the  cross-bill,  is  a  question  ujoon  which 
the  practice  is  not  uniform.  In  some  jurisdictions  it  is 
held  that  new  parties  cannot  be  introduced  by  a  cross- 
bill;^^ in  others  the  practice  of  bringing  in  new  parties  is 
provided  for  by  statute. ^^  Plaintiff  in  the  original  bill 
should  be  a  necessary  defendant  in  a  cross-bill,  although 
it  be  directed  mainly  against  a  co-defendant;  because  a 
controversy  between  defendants  cannot  be  made  the 
ground  of  a  cross-bill,  unless  its  settlement  is  necessary 
to  a  complete  decree  on  the  case  made  by  the  bill.^^ 

§  85.  Form  of  cross-bill.  A  cross-bill  must  have  all 
the  essential  parts  of  an  original  bill.  It  must  be  so 
framed  that  both  original  and  cross  causes  may  be  heard 
together,  and  a  single  decree  entered.^^  Formerly  a  cross- 
bill, in  addition  to  having  all  the  parts  of  an  original  bill 
for  the  same  purpose,  stated  so  much  of  the  original  bill, 
as  to  show  its  parties,  scope  and  object,  and  what  pro- 
ceedings had  been  had  thereon.^  ^  But  this  requirement 
was  due  to  the  fact  that  a  cross-bill  in  England  might  be 
filed  in  a  court  other  than  the  one  in  which  the  original 
suit  was  pending.  In  the  federal  courts  and  in  most 
states  a  cross-bill  must  be  filed  in  the  same  court  as  the 


12a— U.  S.  Eq.  Eule  30.  15— Weaver    v.    Alter,    3    Woods, 

13— Wright    V.    Frank,    61    Miss.  152. 

32;    Shields  v.  Barrow,    17   Howard  16 — McDougald  v.   Dougherty,   14 

130.  Ga.  674. 

14—111.  Statutes,  Chan.  17— Mitford  Eq.  PI.  75. 


58  EQUITY  rLE.\niX(i   AND  TRACTICE 

orii^^iiial;  and  it  is  iieeessaiy  to  set  forth  only  so  much 
of  the  original  bill  and  the  proceedings  thereon  as  may 
be  necessary  to  explain  the  right  sought  to  be  brought 
before  the  court.*'* 

§  86.  Pleading-  to  cross-bill.  A  defendant  to  both  orig- 
inal and  cross-bill  must  interpose  his  defense  separately 
to  eaeli.*^  The  modes  and  grounds  of  defense  are  sub- 
stantially the  same  as  to  an  original  bill. 

In  the  federal  practice,  a  cross-claim  in  an  answer  is 
put  in  issue  by  a  special  reply/*^  which  must  be  filed  with- 
in ten  days  after  answer  filed. 

§  87.  Bills  to  impeach  or  suspend  a  decree,  or  to  carry 
a  decree  into  effect.  Fraud  in  procuring  a  decree  is  the 
usual  ground  for  impeaching  and  setting  the  decree  aside, 
and  a  bill  is  proper  for  the  purpose  even  after  the  term 
has  passed  in  which  the  decree  was  entered.  After  hear- 
ing and  decree,  certain  circumstances,  such  as  newly  dis- 
covered evidence,  will  justify  a  bill  to  suspend  a  decree. 
Circumstances  requiring  further  orders  of  the  court  to 
carry  a  prior  decree  into  effect,  may  be  brought  to  the  at- 
tention of  the  court  by  a  bill  to  carry  into  effect  the  prior 
decree. 

18— Xeal  V.  Foster,  34  Fed.  496.  19— U.  S.  Eq.  Eule  31. 


a> 


a-E 


^ 

(C 

;3 

b£' 

e 

CS 

o 

o 

g 

dj 

43 

:i^ 

C8 
T3 

3  (C 

'-' 

y,? 

P  O  ffl 

"az 

^  ?3 

-ac5 

3  s  o^ 

cq 

ffl 

BILLS   NOT    ORIGINAL  59 

Bills  not  Original 


f? 

&  s 

sa 

«-§ 

■dfl 

£t3 

S<D 

■OS  . 

1 

lis 

■§30 

a 

g-o^ 

S 

f.^1 

K? 

1 

h  o  o 

^11 

'^ 

OJ 

—  o 

Ma 

S£ 

o  o 

aJ2 

P's 

>5 

O  O 

II 

2  1 

3| 

cf 

<    t 

as 
CQo 


CHAPTER  Vin 

Demurrers 

§88.  Defenses  and  defensive  pleadings.  There  are 
five  general  grounds  of  defense:  (1)  Defect  of  jurisdic- 
tion, (2)  Defect  as  to  parties,  (3)  Defect  in  the  frame  or 
form  of  the  bill,  (4)  Defect  of  remedy  (suit  barred), 
(5)  Defect  of  merits  in  the  facts  of  the  case.  These  de- 
fenses question  the  competency  of  the  court,  of  the  par- 
ties, of  the  bill,  of  the  remedy,  of  the  merits.  There  are 
only  three  methods,  or  pleadings  in  defense,  by  which 
these  defenses  can  be  brought  before  the  court:  (1)  By 
demurrer,  (2)  By  plea,  (3)  By  answer.  A  demurrer,  by 
saying  that  no  proper  case  is  stated  in  the  bill,  aims  to 
escape  any  answer  or  trial ;  a  plea  aims  to  escape  answer 
by  proposing  a  trial  upon  the  truth  of  only  one  disputed 
question  of  fact  as  a  defense ;  an  answer,  answers  every 
allegation  of  the  bill,  and  also  distinctly  sets  forth  each 
different  ground  of  defense,  and  proposes  a  trial  upon 
all  disputed  allegations.  It  remains  to  discuss  these 
three  defensive  pleadings  in  their  order. 

§  89.  Nature  of  a  demurrer.  The  function  of  a  plead- 
ing is  to  plead  facts  in  a  logical  manner,  to  assert  facts, 
to  deny  facts,  to  admit  facts.  Bills,  pleas,  answers,  repli- 
cations, disclaimers,  are  typical  pleadings.  A  demurrer 
is  not  typical,  but  is  a  pleading  so-called.  Strictly  speak- 
ing, a  demurrer  is  only  a  written  criticism  or  objection 
to  some  other  pleading.  In  equity  courts  defendant  "de- 
murs" to  the  bill  to  have  the  court  determine,  whether 
upon  the  facts  as  stated  in  the  bill,  plaintiff  is  entitled 

60 


DEMURRERS  61 


Table  of  Defenses  to  Actions 


.o  ;© 


a  a  s 


<«-! 

"S 

3 

a 

p 

o 

fei 

M 

ass 
13  a  » 


XI  ^  P  ^  X!  ^ 

•O  -C  T3  T3  13  "^ 

O  O  ®  ®  <I>  © 

b  ;^  t.  b  b  h 

tj  t.  t»  tj  P  S; 

Co  cd  ed  c4  c4  Co 

.Q  Xi  a  X3  ^  J2 

•U  TJ  TS  T3  'O  'O 


0) 

m 

x> 

a 

a 

a 

a 

a 

a 

o 

<D 

<i) 

» 

M 

H 

pj 

M 

cc: 

52  EQUITY  PLEADING  XSD   PRACTICE 

to  any  relief  in  an  equity  court,  or  whether  defendant  is 
r('(iuiiv(l  to  answer. 

§  90.  Demurrer  raises  a  question  of  law.  It  is  always 
a  question  of  law  for  the  court  to  decide,  whether,  and  to 
what  extent,  a  bill  is  defective;  and  so  it  is  said  a  demur- 
rer always  raises  a  question  of  law.  It  is  the  function  of 
a  plea,  or  of  an  answer,  to  raise  a  question  of  fact  against 
tlie  allegations  in  the  bill. 

§  91.  Demurrer  applies  only  to  bill.  In  equity  courts, 
unlike  common  law  courts,  the  word  ''demurrer"  is  re- 
stricted to  apply  only  to  a  demurrer  to  a  bill.  Objections 
or  criticism  of  the  plea  as  constituting  a  defense,^  or  of 
an  answer  as  constituting  a  defense,^  are  not  filed  in  writ- 
ten form  at  all,  and  are  not  called  demurrers.  If  a  plea 
is  thought  by  complainant  to  be  insufficient  to  constitute 
a  valid  defense,  he  cannot  demur;  he  moves  the  court  "to 
set  the  cause  down  for  argument  as  to  the  sufficiency  of 
the  plea  on  file;"  and  if  a  complainant  thinks  an  answer 
does  not  constitute  a  valid  defense,  he  cannot  demur;  he 
moves  the  court  "to  set  the  cause  down  for  hearing  upon 
the  bill  and  answer."  If  complainant  objects  that  de- 
fendant in  his  answer  has  given  insufficient  discovery  in 
answer  to  the  allegations  of  the  bill,  he  expresses  his 
objection,  not  by  demurrer,  but  by  filing  "exceptions" 
in  writing,  pointing  out  what  allegations  are  not  an- 
swered. If  either  party  wishes  to  object  or  to  criticise 
the  opposite  pleading,  for  containing  impertinent  or  scan- 
dalous allegations,  he  does  not  demur,  but  files  written 
"exceptions,"  wliich  point  out  such  allegations. 

§92.  Demurrer  defined.  Thus  in  equity  a  "demur- 
rer" can  be  to  the  bill  only.  It  may  be  defined  as  an 
objection  to  the  bill,  for  deficiencies  in  its  form,  or  in  its 
statements,  which  deficiencies  are  apparent  from  the  bill 

1— Travers  v.  Boss,  14  N.  J.  Eq.  2 — Stokes  v.  Farnsworth,  99  Fed. 

254.  836. 


DEMURRERS  68 

itself,  even  assuming  all  its  statements  to  be  true,  but 
not  assuming  as  true  any  facts  not  stated  in  the  bill.^ 

In  federal  equity  practice,  the  so-called  "demurrer" 
is  abolished.  But  its  function  is  not  abolished;  there, 
all  demurrable  objections  to  a  bill  must  be  presented  to 
the  attention  of  the  court  in  the  form  of  a  motion  to 
dismiss  the  bill,  or  the  objection  must  be  stated  as  a  part 
of  the  answer  to  the  bill;  and  such  objection  in  an  answer 
may  be  disposed  of  before  final  hearing  in  the  discretion 
of  the  court.  A  motion  to  dismiss  may  be  set  for  hearing 
by  either  party  upon  five  days'  notice.^ 

§  93.  Function  or  use  of  demurrer.  A  demurrer,  after 
mentioning  either  some  general  or  special  ground  of 
objection,  prays  the  court  to  dismiss  the  demurring  de- 
fendant, and  to  excuse  him  from  answering  the  bill.  Thus 
a  demurrer  always  delays  a  full  and  general  answer  to 
the  bill;  and  if  sustained  by  the  court  defendant  avoids 
answering.  If  the  defects  of  stating  a.  cause  of  action  are 
material,  and  if  the  true  facts  of  the  controversy  are  such 
that  a  better  case  cannot  be  stated,  even  if  amendment  be 
allowed,  then  a  demurrer  will  end  the  suit ;  and  the  trouble 
of  answering  fully*,  and  the  expense  of  a  trial  or  hearing, 
is  thus  avoided.  Defects  which  are  merely  formal  or  im- 
material are  waived  by  omitting  to  demur,  and  some  ma- 
terial defects  are  thus  waived.^  But  material  defects, 
such  as  entire  Avant  of  jurisdiction  over  the  subject-matter 
or  over  the  parties,  are  not  waived  by  omitting  to  demur. 
If  defendant  feels  sure  his  demurrer  is  based  upon 
material  defects,  and  desires  to  risk  his  entire  defense 
upon  the  demurrer,  he  "abides  by"  his  demurrer,  if 
overruled  upon  argument  in  the  court  below;  he  omits 
then  to  answer  further,  and  a  decree  is  entered,  and 
later  the  decision  of  the  demurrer  by  a  higher  court  upon 
appeal  from  this  decree,  ends  the  case. 

3—2  Dau.  20.  5— Law    v.    Ware,    238    111.    360; 

4— U.  S.  Eq.  Eule  29.  Richards  v.  Ry.  Co.,  124  111.  516. 


64  EQUITY  PLEADING  AND  PRACTICE 

§  94.  Forms  of  demuiTer.  As  to  their  forms,  demur- 
rers are  classed  as  general  demurrers,  special  demurrers, 
and  demurrers  ore  tenus  (oral  demurrers). 

§  95.  General  demurrer.  A  demurrer  will  not  be  good 
if  it  merely  says  that  defendant  ''demurs  to  the  bill."  It 
must  express  some  ground  of  demurrer,  either  general  or 
special.  A  defendant  is  said  to  demur  generally  when  he 
demurs  to  the  jurisdiction  of  any  equity  court  over  the 
subject-matter  of  the  bill,  or  to  the  lack  of  substance  or 
merits  of  the  bill,  in  other  words,  "for  want  of  equity" 
in  the  nature  of  the  subject-matter  stated,  or  in  the  merits 
of  the  facts  stated;  he  is  said  to  demur  specially  when 
•ho  demurs  for  any  defects,  other  than  for  "want  of 
equity. ' ' 

§  96.  Special  demurrer.  A  special  demurrer,  as  a 
rule,  must  specify  and  point  out  the  defects  or  omission.^ 
A  demurrer  for  want  of  equity,  may,  but  is  not  required 
to  specify  the  particular  grounds  of  demurrer,  beyond 
the  general  statement,  that ' '  there  is  no  equity  shown  by 
the  bill."  Thus,  a  demurrer  for  non-joinder  or  mis- 
joinder of  the  parties  must  specify  who  are  the  neces- 
sary parties ;  and  a  demurrer  for  multifariousness  should 
specify  not  simply  that  the  bill  is  multifarious,  but  that 
it  unites  distinct  and  separate  claims  in  one  suit,  and 
the  demurrer  should  further  show  the  inconvenience  that 
will  result  from  so  doing.'^ 

§  98A.  Distinction  between  general  and  special  demur- 
rers. Where  the  facts  alleged  fail  substantially  to  make 
out  a  case  in  equity,  the  demurrer  may  be  generally 
stated,  to  be  upon  the  ground  of  "want  of  equity;"  but 
when  the  demurrer  is  upon  any  other  ground  such  as 
defect  of  jurisdiction  over  parties,  defect  of  parties,  de- 

6—2  Dan.  71.  7—2  Dan.  71. 


DEMURREES  65 

feet  of  bill,  defect  of  remedy  (such  as  suit  barred  by 
laches,  or  by  statutes  of  limitations,  frauds,  usury,  etc.), 
then  such  grounds  of  demurrer  must  be  expressly  pointed 
out.^  Therefore  for  all  dilatory  defects,  the  ground  of 
demurrer  must  be  specially  pointed  out,  as  well  as  for 
formal  defects.^ 

§96B.  Oral  demurrers,  (ore  tenus).  A  defendant 
may,  even  at  the  hearing  of  arguments  on  his  demurrer, 
orally  assign  other  grounds  of  demurrer  in  addition  to, 
and  different  from,  the  grounds  mentioned  therein.  This 
is  called  demurring  ore  tenus,  orally,  and  even  if  the 
grounds  mentioned  in  the  written  demurrer  are  held 
invalid,  the  oral  grounds,  if  held  valid,  will  support  the 
written  demurrer  filed,  and  sustain  the  same.  A  defend- 
ant may  assign  as  many  causes  of  demurrer  as  he 
pleases,  but  a  demurrer  ore  tenus,  must  be  co-extensive 
with  the  demurrer  on  file.  That  is,  if  the  demurrer  filed 
is  to  a  part  of  the  bill,  an  ore  tenus  ground  of  demurrer 
must  also  be  to  that  same  part,  and  cannot  go  to  the 
whole  bill.^*' 

§  97.    Advisable  to  file  general  and  special  demurrer. 

The  safe  practice  for  one  who  demurs,  is  always  to  demur 
generally,  that  is  "for  want  of  equity,"  and  also  again 
in  the  same  pleading  to  demur  specially,  upon  a  specified 
ground,  because  then  at  the  hearing  upon  such  demurrer, 
still  other  grounds  of  demurrer,  to  the  whole  or  part  of 
the  bill,  can  be  assigned  ore  tenus,  orally.  If  only  a  spe- 
cial demurrer,  to  a  part  of  the  bill  were  used,  a,n  ore  tenus 
ground  would  be  limited  to  apply  to  the  same  part. 

Even  in  the  federal  practice,  where  demurrers  must 
be  made  in  the  form  of  a  motion  to  dismiss,  or  be  set 
forth  in  an  answer,  fairness  requires  that  the  grounds 
for  the  demurrer  be  set  forth  as  notice  to  the  adverse 
party. 

8— Borders  v.  Murphy,  78  111.  81.  10—2  Dan.   71,  72. 

9— Day  v.  Cole,  56  Mich.  295. 
E.  P.— 5 


65  EQUITY  PLEADING  AND  PRACTICE 

§  98.  Grounds  of  demurrer.  As  to  their  grounds,  de- 
murrers to  tlie  relief  are  classed  as : 

1.  Demurrers  as  to  the  jurisdiction  of  the  court,  over 
the  subject  matter,  or  over  the  parties. 

2.  Demurrers  as  to  the  parties,  for  nonjoinder,  mis- 
joinder or  want  of  capacity. 

3.  Demurrers  as  to  the  frame  or  form  of  the  bill,  such 
as  for  multifariousness,  omission  of  parts  of  the  bill, 
omission  of  afiSdavit,  omission  of  signature,  etc. 

4.  Demurrer  as  to  remedy,  or  in  bar  of  suit,  by  Statute 
of  Limitation^  Statute  of  Fraud,  Res  ad^udicata,  other 
suit  pending.  Laches,  Release. 

5.  Demurrer  as  to  the  merits;  want  of  equity  in  the 
case  stated. 

§99.  General  grounds  easily  suggest  the  particular 
grounds.  The  grounds  of  demurrer  are  easily  suggested 
from  the  author's  classification  of  defenses  to  actions. 
The  table  on  the  following  page  should  be  mastered  by 
all  students  of  pleading. 

§  100.  What  is  conceded  upon  demurrer.  In  hearing 
a  demurrer,  the  argument  is  strictly  confined  to  the  case 
as  stated  in  the  bill ;  and  all  matters  well  pleaded  in  the 
bill  are  deemed  to  be  true.^^  But  where  a  bill  avers  any 
fact  falsely  and  contrary  to  ^vhat  the  court  is  presumed 
to  know  as  matter  of  judicial  notice,  such  averment, 
upon  arguing  a  demurrer  to  the  bill,  is  considered  a 
nullity.^  2  ^ji(j  a  demurrer  does  not  concede  any  matter 
of  law  which  may  be  suggested  in  the  bill,  or  may  be 
inferred  from  the  facts  stated  in  the  bill;^^  nor  any 
fact  that  is  not  specifically  alleged  ;^^  nor  allegations 
*Hhat  complainant  is  informed  and  believes  that"^^  but 

11 — East  India  Co.  v.  Hinchman,  14 — Am.  Loan  &  Trust  Co.  v.  E. 

1  Vesey,  Jr.  289.  E.  Co.,  157  111.  641. 

12—2   Dan.    23.  15— Murphy   v.    Murphy,   189   111. 

13— Dillon   V.   Barnard,   21   Wall.  360. 
430. 


DEMURRERS  67 

Different  Grounds  of  Demurrer 


ST)  ft-Bii 

"^       m  fa  WO 


...  ^     be  o 

a  ^      pis.  a  sS  g  ^,.2 


d  fa 


;;.-   OS 


o     s 


°   s-S     s         15   a^ 


.i.P 


nil     I 

C  2  m  =  >^ 


cS  n! 


Sa  1 


_•  OS  ffl  mT3 


M^'^o-^flo'S-       S^      gcao-^         -g-g^os         S  g  u  o  t.  t,  t.  p.         "Sis !-«  0^.314 


am 


e  o  «  -So  ®  S3 


iO 


9  <i^*M 


■So 


■oo 

+J  o 
to  ^N  (83 

£«.&  is 

a^9  Is 

O  tS  ©    _  O  Pi 


fa  kl 

fi2«  fig 


68  EQUITY  PLEADING  AND  PRACTICE 

positive  allegations  "that  complainant  is  informed,  and 

believes,  and  therefore  states  the  fact  to  be  that" — ,  are 
conceded.*" 

§  101.  A  speaking'  demurrer.  A  demurrer  cannot  in- 
voke in  its  support  any  fact  whatever  which  is  not 
contained  in  the  bill,*^  except  those  facts  of  which  the 
court  takes  judicial  notice.*^  Wben  the  demurrer  de- 
pends upon  some  fact  not  appearing  in  the  bill,  it  is 
called  a  speaking  demurrer,  and  will  be  overruled.  It  is 
the  function  of  a  plea  or  answer  to  expressly  set  forth 
defensive  facts  not  appearing  in  the  bill.  A  demurrer 
cannot  do  so,  either  expressly  or  in  argument. 

§  102.  How  demurrer  may  be  waived.  A  defendant 
who  does  not  bring  his  demurrer  to  a  hearing  thereby 
waives  it.*^  A  defendant  who  files  his  plea,  or  answer, 
after  his  demurrer  has  been  overruled  (unless  the  an- 
swer specifically  mentions  a  ground  of  demurrer  and 
reserves  the  demurrer  as  a  defense),  thereby  waives  the 
right  to  assign  the  overruling  of  his  demurrer  as  error, 
and  thus  he  waives  the  demurrer,  unless  the  bill  fails  to 
set  forth  a  cause  of  action,  or  unless  the  case  presents 
jurisdictional  defects.^* 

§  103.  Effect  of  sustaining  a  demurrer.  A  demurrer 
to  the  whole  bill,  if  sustained,  results  in  a  decree  dis- 
missing the  bill,  unless  the  court  can  see  that  the  defects 
of  the  bill  can  be  cured  by  amendment,  in  which  case 
leave  to  amend  will  be  given.  If  leave  to  amend  is  not 
requested  the  bill  is  dismissed. 

§  104.  Effect  of  overruling  a  demurrer.  If  a  demurrer 
is  overruled,  the  defendant  who  demurred  is  ruled  to 

16— Bromley  Carpet  Co.  v.  Field,  19— Long  v.  Fox,  100  111.  43. 

88  III.  App.  228.  20— Baumgartner   v.   Brandt,   207 

17— Story,   Sec.   448.  HI.  345;  ciine  v.  CUne,  204  111.  130. 
18—2  Dan.  23-72. 


DEMURRERS  69 

answer.  If  he  does  not  answer,  the  bill  is  taken  as  con- 
fessed. An  order  overruling  a  demurrer  is  not  a  final 
order;  it  merely  determines  there  is  sufficient  equity 
stated  in  the  bill  to  require  an  answer. 


CHAPTER  IX 

Pleas 

§  105.  Plea  defined.  A  plea  is  a  short  pleading  of  a 
single  defense,  instead  of  an  answer  with  full  discovery 
besides  defenses.  A  plea  either  affirms  against  the  bill, 
a  single  matter  of  fact  as  a  defense,  or  it  denies  a  single 
essential  matter  of  fact  alleged  in  the  bill,  or  it  both 
affirms  a  defense  anticipated  by  the  bill  and  denies  the 
statements  in  the  bill  impeaching  such  expected  defense. 
The  defense  raised  by  a  plea,  may  be  a  dilatory  defense, 
which  abates,  defeats,  that  particular  court  action  only; 
or  it  may  be  a  defense  in  bar  of  any  suit,  or  one  which 
upon  the  merits  ends  the  controversy  for  all  time.  Thus, 
a  plea  always  delays,  and  if  successful,  avoids,  a  full 
answer  to  the  bill. 

§  106.  Plea  and  demurrer  compared;  function  of  a 
plea.  A  demurrer  asserts  that  the  facts  in  the  bill  even 
if  true,  as  stated,  do  not  constitute  a  correct,  lawful 
case.  A  plea  asserts  that  the  true  facts,  in  at  least  one 
respect,  are  not  fairly  stated  in  the  bill.  The  main  pur- 
pose of  a  plea  in  cliancery,  is  to  save  the  delay  and  ex- 
pense of  going  into  the  case  at  large  when  some  defensive 
ground  of  fact  exists,  which  when  proved  to  the  court, 
will  either  abate  the  suit,  or  bar  recovery  therein.  It 
saves  defendant  from  the  difficult,  tedious,  and  self- 
betraying  answer  in  chancery.  Unlike  an  answer,  a  plea 
admits  all  allegations  in  the  bill  which  are  not  expressly 
denied  in  the  plea.^ 


1— McCloskey    v.    Barr,    38    Fed. 
165. 


'70 


PLEAS  71 

§  107.  Forms  of  pleas.  According  to  manner  and  form 
of  statement,  pleas  are  denominated  as : 

(1)  PuEB  OR  Affirmative  Pleas,  which  affirm  or 
allege  as  a  single  ground  of  defense,  new  matters 
of  fact  by  way  of  confession  and  avoidance.  For  ex- 
ample, a  plea  of  the  facts  showing  that  plaintiff  has  given 
a  release  of  the  claim.^ 

(2)  Negative  Pleas,  which  negative  (deny),  a  single 
essential  allegation  of  fact  appearing  in  the  bill.^ 

For  example,  a  plea  denying  that  complainant ' '  resided 
in  said  state  one  year  before  filing  his  bill  of  complaint" 
(where  such  residence  is  alleged  in  the  bill,  and  is  re- 
quired by  statute) ;  or  a  plea  denying  that  complainant 
is  the  legal  or  equitable  owner  of  the  real  estate  as  stated 
in  the  bill,  and  which  is  the  subject-matter  of  the  suit; 
or  a  plea  denying  any  other  fact  necessary  to  establish 
complainant's  case. 

(3)  Anomalous  Pleas,  (affirmative  and  negative 
pleas),  which  affirm  the  defense  anticipated  by  the 
bill,  and  negative  the  allegations  in  the  bill  which  would 
vitiate  the  expected  defense. 

For  example,  where  the  bill  charges  that  the  expected 
defense  of  the  statute  of  limitations  is  avoided  by  the 
defendant's  renewed  promise  to  pay;  then  if  defendant 
wishes  to  file  a  plea  making  this  expected  defense,  his 
plea  must  nevertheless  affirmatively  set  forth  the  statute 
of  limitations,  and  expressly  deny  making  any  new  prom- 
ise to  pay,  at  any  time  since  the  time  the  statute  became 
a  bar  to  the  claim.  Because,  expressly  asserting  the 
statute,  and  expressly  denying  the  alleged  new  promise 
to  pay,  are  both  necessary  to  make  a  single  complete 
defense  to  such  allegations  in  a  bill;  and  because,  unlike 
an  answer,  a  plea  is  deemed  to  admit  every  allegation  of 


2— story  Eq.  PI.  660.  3—2  Daniell  Ch.  Pr.  98. 


72  EQUITY  rLEi\DING  AND  PRACTICE 

the  bill  unless  expressly  denied  in  the  plea^  Defenses 
such  as  laches,  statute  of  limitations,  and  statute  of 
frauds,  are  in  some  jurisdictions,  deemed  to  be  waived 
unless  the  pleader  expressly  sets  them  forth  in  his  de- 
murrer, or  in  his  plea,  or  in  his  answer.'^ 

Moreover,  in  anomalous  pleas,  the  affirming  of  the 
expected  defense,  and  the  denial  of  the  statements  in  tbe 
bill  impeaching  that  defense,  should  both  appear  in  two 
places,  (1)  among  the  general  averments,  constituting  the 
formal  body  of  the  plea  itself,  and  (2)  as  a  part  of  an 
''answer  in  support'^  of  such  a  plea.  Charges  in  a  bill 
impeaching  an  anticipated  defense  always  compel  the 
defendant  to  file  with  a  plea  a  ''supporting  answer"  giv- 
ing discovery  in  answer  to  each  and  all  e^'idential  facts 
and  statements  in  the  bill  impeaching  the  good  faith  and 
truth  of  such  expected  defense;  thus  it  is  seen  that  an 
anomalous  plea  is  also  always  "a  plea  supported  by  an- 
swer. ' '  Though  contained  in  a  single  pleading,  the  body 
of  the  plea,  and  the  accompanying  answer  are  distinct  and 
separate  parts ;  and  tlie  body  of  an  anomalous  plea,  should 
both  affirm  the  defense  and  deny  the  impeaching  charges, 
independently  of  the  denials  to  the  bill  also  particularly 
set  forth  in  the  accompanying  supporting  answer.^ 

§  108.  Pleas  supported  by  answer.  If  defendant  files 
a  good  plea,  he  always  saves  himself  from  a  general  and 
full  answer  to  the  bill.  But  sometimes  even  a  plea  is 
required  to  include  a  short  answer.  If  a  plea  sets  up  a 
defensive  ground  of  fact,  regarding  which  the  bill  has 
charged  particular  evidential  facts  and  circuenstances, 
as  avoiding  and  impeaching  such  expected  defense,  then 
the  plea,  whether  an  affirmative  plea,  or  a  negative  plea, 
or  an  anomalous  plea,  must  also  be  accompanied  by  so 


4 — McCloskey   v.    Barr,    38    Fed.  6 — Allen    v.   Eandolph,   4   Johns. 

165,  171.  Ch.  N.  Y.  693. 

5— Fletcher  Eq.  PI.  Sec.  275. 


PLEAS  73 

mucli  of  an  answer  to  the  bill,  as  will  give  discovery  in 
answer  to  these  impeaching  evidential  facts  and  cir- 
cumstances in  the  bill  bearing  on  the  defense  pleaded. 

§109.  Answer  in  support  carefully  limited.  Care 
must  be  taken  that  such  answer  in  support  of  a  plea 
does  not  answer  the  bill  beyond  the  defensive  ground 
of  facts  covered  by  the  plea,  nor  beyond  matters  strictly 
responsive  to  the  allegations,  charges,  or  interrogatories, 
on  that  subject  in  the  bill;  because  in  some  states  an  un- 
necessary answer,  mth  or  after  a  plea,  overrules,  waives, 
a  plea. 

§  109A.  Grounds  of  pleas.  As  to  their  grounds,  pleas 
are  classed  as : 

1.  Pleas  to  the  jurisdiction  of  the  court,  over  the  sub- 
ject matter,  or  over  the  parties. 

2.  Pleas  as  to  the  parties,  for  non-joinder,  misjoinder, 
or  want  of  capacity. 

3.  Pleas  in  bar  of  the  remedy,  by  statute  of  limitation, 
statute  of  frauds,  res  adjudicata,  another  suit  pending, 
laches,  release. 

4.  Pleas  to  the  merits,  or  facts  showing  the  true  mer- 
its are  not  as  stated  in  the  bill  and  are  in  favor  of  defend- 
ant. 

These  general  grounds  easily  suggest  themselves  from 
the  author's  clssification  of  defenses  to  actions.  The  first 
two  classes  are  also  known  as  pleas  dilatory  or  in  abate- 
ment, and  the  last  two,  as  pleas  in  bar  or  to  the  merits. 
The  table  on  the  following  page  should  be  memorized  to 
obtain  a  ready  comprehension  of  pleas. 

§  110.  Pleas  to  jurisdiction  must  give  better  jurisdic- 
tion. Pleas  to  the  jurisdiction  must  show  what  court 
has  proper  jurisdiction  to  give  a  complete  remedy.'^  Pleas 
as  to  defects  as  to  parties,  must  point  out  the  proper 
parties. 

7—2    Dan.    139. 


EQUITY  PLEADING  AND  PRACTICE 


Different  Grounds  of  Pleas 


sly 

-^ 



R 

a 

» 

__. 

a5"a 

•o 

(i 

1 

Si 
g 

o 
o 

S! 

3 

3 
O 

—  o 

2 

1 

c 

•a 

11 

82 

oa 

9 

be 

M 

"3 

! 

1 

C03 

1 

00 
CS 

o 

tt 

il 

5.2 

5S 

§1 

x>  a 
»  a 

1! 

■go 
S  fi 

"5  a 

u 

s 

o 

a 

o 

1 

o 

3 

o 

o 
2 

3 

G 

« 
to 

s 

o 

s 

u 
i2 

"55 

a 

a 

3 
O 

U 

d 

O 

o 

o 

a 

1 

1 
1 

1 

la 

!« 

ft-' 

■a  >. 

St; 

*5 

tw  0 

ag 

"S 

•a 

S 

2S 
^  o 

§s 

c^ 

B-S 

a 

® 

u 

o 

a> 

6: 

a 

a 

So 

2  ** 

It 

n  o 
II 

o  s 

O 

■a -A 
u  « 

1 

CO 

a 
o 

o 

■a 

8 
1 

3 

C  3 

oS 

S-3 

a 
o 

-a: 

3 

3 

(S 

■3 

CS 

a 
g 

CS 

Is 

s 

o 

a 

Oa 

si 

SI 

1^ 

c 
o 

J3 

S3 

O  OS 

CS 

ft 

d 

a 
1 

o 

■s 

1 

o 

.2' 
'C 
a 

o 

3 

a 
g 

a 

3 

o 

O 

o 

■s 

CS 

CS 
T3 

a 
o 

ID 

IS  £> 

^  ca 

<D  O 

ss 

B  3 

eS  O 

5 

o 

a 

it 

CS  ^ 

*2 

2^ 

Is 

0)  <c 

j3  a 

a> 

a 

o 
a> 

c 
a 
s 

1 

s 

3 

SI" 

£ 

•a 

<B 
1 

a 

CS 

a 
o 
■■S 
a 

o 

C3 

.a 
Z 
a 

ea 

il 

II 

SI'S 

"^ 

if 

5=1 

C  o 

c 

go 

!« 

o 

o 

t' 

X5 

3 

a 

IS 

a 

3 
O 

u 

a 

*"  IB 

0 

•O  3 

o 

c  a 
5     §2 

a 
o 

■o 
3 
o 

o 

a 

3 
O 

O 

o 

'5 

J3 

o 

CS 

i 

"3 
u 

>> 

CS 
>> 

'2 

o 

a 

C  J 
cS  t£l 

ea 
"S  o 

•si 

o 

*■£ 

flC^ 

5 

^1 

g    ■£:  a 

a 

"S 

e 

Ui 

p 

^ 

u 

IB 

■Si" 

■"  a 

Q 

■°  5 

■a^ 

Q 

a    * «, 
ea    q2 

o 

P 

CS 

452 

C3 

CS 

CS 

cS 

fl 

5-S 

Ao 

Hg 

^5 

t-'B 

iz; 

§ 

ra 

«g 

« 

« 

a 

CO 

oi 

©■§ 

^ 

e« 

'^ 

ej 

03 

"* 

1H 

OJ 

03 

■<^ 

lO 

d 

tH 

N 

t-'ti 

•a 

4> 

^ 

A 

a> 

;a 

A 

a 

a 

<B 

2  . 

•  a 

*S 

U 

m  » 

sl 

SS 

S2 

0)  f 

Oo 

h| 

7<  4> 

'tS 

S 

o 

p^a 

lH 

d 

03 

^ 

PLEAS  75 

§  111.    In  federal  courts  the  separate  plea  is  abolished. 

In  the  federal  practice,  the  separate  pleading  known 
as  a  plea,  is  abolished,  and  every  defense  heretofore 
presentable  by  plea  must  be  made  in  the  answer,  and 
may  be  separately  heard  and  disposed  of  before  the  trial 
of  the  principal  case  in  the  discretion  of  the  court.® 

§  112.  Testing  the  legal  sufficiency  of  a  plea.  A  plea 
in  equity  is  not  spoken  of  as  being  demurrable,  the  word, 
demurrer  being  limited  to  apply  to  demurrers  to  bills. 
If  complainant  thinks  a  plea  filed,  does  not  set  forth  a 
good  defense  in  equity,  he  does  not  "demur;"  he  moves 
the  court  to  "set  the  cause  down  for  hearing,  as  to  the 
sufficiency  of  the  plea."  When  thus  set  down  for  argu- 
ment, the  truth  of  the  facts  stated  in  the  plea  is  conceded 
for  the  time  being.  If  the  plea  is  adjudged  good,  the 
plaintiff  must  then  take  issue  upon  the  plea  by  fihng  a 
replication  to  it.  If  the  plea  is  adjudged  had,  the  defend- 
ant will  then  still  be  allowed  to  file  an  answer  to  the  bill.'* 

In  the  federal  practice,  the  logical  sufficiency  of  a  plea, 
as  set  forth  in  an  answer,  may  be  tested  by  a  motion  to 
strike  out.^^ 

§  113.  Trial  of  case  upon  plea  and  replication.  If  the 
plaintiff  takes  issue  on  a  plea,  by  filing  a  replication  to 
it,  he  thereby  admits  its  sufficiency  as  a  pleading  to  his 
bill ;  and  the  only  question  then  open  is  the  truth  of  the 
facts  in  the  plea,  which  will  be  determined  by  trial  and 
evidence.^ ^  Upon  trial  and  evidence,  the  decision  of  the 
court  depends  upon  the  nature  and  extent  of  the  issues 
and  defense  made  by  the  plea ;  as  a  rule  the  plea  ends  the 
suit. 

In  the  federal  practice  the  function  and  effect  of  a  plea 
for  many  years  has  been  obscured  if  not  destroyed  by  the 
federal  courts'  interpretation  of  old  rules  33  and  34. 

8— U.  S.  Eq.  Eule  29.  10— U.  S.  Eq.  Eule  33. 

9— Ehode    Island    v.     Mass.,    14  II— Bean  v.  Clark,  30  Fed.  Eep. 

Peters  210.  225. 


76  EQUITY  PLEADINQ  AND  PRACTICE 

Upon  trial  aiul  ovidenco  upon  a  plea,  if  tlie  finding  was 
for  the  defendant,  it  availed  him;  but  if  the  finding  was 
for  the  plaintiff,  the  only  effect  in  any  event  was  that  de- 
fendant must  be  allowed  to  answer  over.^^  Thus  the  plea 
in  the  federal  courts  was  a  sure  instrument  of  delay  for 
the  defendant  and  was  of  no  avail  to  plaintiff.  It  may  be 
for  this  reason  that  new  federal  rule  29  aboHshes  the  sep- 
arate plea  and  makes  it  presentable  only  by  answer.  The 
chief  function  of  a  plea  is  to  avoid  the  long  and  difficult 
answer  as  well  as  the  long  trial  thereon,  by  preseinting 
instead  of  an  answer,  a  single  complete  defense  of  fact 
by  way  of  a  separate  plea  and  trial  thereon.  A  plea, 
being  simply  one  of  the  complete  defenses  to  an  entire 
suit,  could  always  in  regular  chancery  practice,  be  set 
forth  with  other  defenses,  in  an  answer;  and  it  always 
was  proper  to  try  a  plea  before  trial  of  the  other  issues 
made  by  an  answer.  The  plea  and  the  demurrer  are 
more  useful  as  separate  pleadings,  than  as  part  of  an 
answer  which  might  be  unnecessary. 

§  114.  Pleas  verified.  Where  a  plea  is  accompanied  by 
answer,  it  must  be  put  in  upon  oath.  Pleas  in  bar  by 
matter  of  fact,  must  be  verified  upon  oath. 

§  115.  Plea  may  be  waived.  A  plea  is  waived  by  going 
to  answer  and  hearing  on  the  general  merits  of  the 
cause.^^ 

12— Westervelt     v.     Library     Bu-  13— Miller  v.  Perks,  63  111.  App. 

reau,  118  Fed.  824;  Dalzell  v.  Due-      140. 
ber  Mfg.  Co.,  149  U.  S.  315;  Farley 
V.  Kittson,  120  U.  S.  303;  Old  U.  S. 
Eq.  Eules  33  and  34. 


CHAPTER  X 
Disclaimer 

§  116.  A  disclaimer  is  a  pleading  whereby  a  defendant 
denies  that  he  has  or  claims  any  right  to  the  thing  in 
demand,  and  renounces  all  claim  thereto.  It  is  available 
only  to  a  defendant  charged  merely  with  having  an  inter- 
est in  the  subject-matter  and  not  with  a  liability  connected 
therewith.  One  cannot  disclaim  where  he  is  charged  with 
fraud  or  where  a  liability  for  costs  remains.  If  defend- 
ant once  had  an  interest  with  which  he  has  parted,  an 
answer  is  required  to  show  plaintiff  whom  to  make  proper 
parties.  Plaintiff  may  except  to  an  improper  disclaimer 
in  the  same  manner  as  to  an  answer.  In  form  a  dis- 
claimer begins  and  ends  like  an  answer. 

A  defendant  cannot  by  a  disclaimer  prevent  plaintiff 
from  obtaining  an  answer  from  him,  unless  it  is  clear 
from  the  allegations  in  the  bill,  and  from  the  statements 
in  the  disclaimer,  that  the  defendant  ought  not  after  the 
disclaimer  as  made,  be  retained  as  a  party  to  the  suit.^ 
A  disclaimer  must  be  full  and  explicit,  and  be  accom- 
panied by  answers  denying  or  avoiding  facts  in  the  bill 
which  ought  to  be  answered.^ 


1 — Ellsworth  V.   Curtis,   10  Paige  2 — Worthington  v.  Lee,  2  Bland. 

Ch.  N.  Y.  105.  Md  678. 


77 


CHAPTER  XI 

Answer 

§  117.  The  third  mode  of  defense  to  a  bill  is  by  answer. 
If  a  defendant  properly  served  with  summons,  does  not 
demur  to  the  bill,  nor  file  a  plea  to  it;  or  if  a  demurrer 
or  plea  filed,  has  been  overruled,  he  files  an  answer,  or 
the  bill  "will  be  taken  as  confessed. 

§  118.  Two-fold  nature  of  answer,  to  give  discovery, 
and  to  plead  the  defenses.  The  answer,  after  answering 
all  statements,  charges,  and  interrogatories  in  the  bill, 
should  then  proceed  further,  and  make  averments  or 
denials  constituting  the  defenses.^  The  defense  may  be 
based  on  mere  denials  of  material  allegations  in  the  bill 
or  it  may  consist  of  new  facts  averred,  which  counteract 
or  avoid  those  stated  in  the  bill.  Thus  an  answer  is 
always  both  an  mi6wer,  giving  the  discovery  demanded 
by  the  bill,  and  is  also  a  pleading,  showing  the  definite 
defenses.^  Several  defenses  may  be  pleaded  in  an  an- 
swer, even  alternative  and  inconsistent  defenses.^*  If 
the  defense  is  intended  to  be  based  upon  a  denial  merely 
of  certain  averments  of  the  bill,  then  such  intended  de- 
nials must  bo  explicitly  stated  in  an  answer. 

§  119.  Allegations  unanswered  in  an  answer  are 
deemed  to  be  denied.  In  equity,  upon  answer  filed,  in 
most  states,  an  allegation  of  the  bill,  unanswered  by  the 
answer,  is  deemed  to  be  denied  by  the  formal  traverse  at 

1— Langdell  68.  2a— U.  S.  Eq.  Eule  30. 

2—2  Dan.  239. 

78 


ANSWER  79 

the  close  of  the  answer,  unless  facts  essential  to  the 
defense  stated,  are  evaded  and  not  covered.^^ 

In  federal  practice,  however,  averments  of  the  bill  are 
deemed  to  be  admitted  by  the  answer  unless  the  answer 
meets  them.^ 

§  120.  When  an  answer  is  discovery,  and  when,  it  is 
mere  pleading.  The  answers  of  the  defendant  to  the 
statements,  charges,  and  interrogatories  of  the  bill,  are 
called  "discovery,"  and  are  ordinarily  to  be  regarded  as 
evidence  in  the  case,  unless  a  statute  permits,  and  the 
bill  also  expressly  permits  an  answer  not  under  oath.  If 
answer  under  oath  is  thus  expressly  waived,  then  the 
answer,  even  if  put  in  under  oath,  is  a  mere  pleading,  and 
not  evidence.  But  even  as  a  mere  pleading,  the  answer 
may  admit,  as  ^^11  as  deny,  allegations  of  fact  in  the 
bill.  It  is  always  a  function  of  any  pleading,  to  admit 
facts,  or  to  deny  facts,  or  to  assert  facts,  material  to  the 
controversy,  for  the  purpose  of  formulating  the  issues 
for  trial.  If  answer  under  oath  be  not  waived,  the  an- 
swer then  must  be  under  oath,  and  the  averments  of  the 
answer,  are  then  regarded  as  evidence,  equal  to  that  of 
one  witness,  to  overcome  which,  complainant  must  intro- 
duce two  witnesses,  or  one  witness,  and  other  evidence 
sufficient  to  preponderate. 

§  121.    Answer  must  meet  every  allegation  in  the  bill. 

Whether  or  not  the  bill  waives  answer  under  oath,  an 
answering  defendant  must  answer  every  material  allega- 
tion of  the  bill,^  admitting  this  one,  denying  that  one, 
or  asserting  he  has  no  knowledge  or  information  and  no 
belief  concerning  a  certain  allegation,  he  "therefore 
denies  it,  and  calls  for  strict  proof  thereof:"  (For  ex- 
ample, "Defendant  has  no  knowledge  or  information  or 
belief  as  to  whether  or  not  complainant  is  the  owner,  etc. 


2b — Higgins  v.  Curtiss,  82  111.  28.  4—2  Dan.  246. 

3— U.   S.   Equity  Eule   30. 


80  EQUITY  PLEADING  AND  PRACTICE 

— and  therefore  defendant  denies  that  plaintiff  is  the 
owner  and  calls  for  strict  proof  thereof").  In  the  fed- 
eral practice,  averments  of  the  bill,  other  than  of  value 
or  amount  of  damage,  if  not  denied,  are  deemed  to  be 
confessed  by  the  answer,  except  as  against  an  infant, 
lunatic,  or  other  person,  non  compos,  and  not  under 
guardianship.^* 

A  defendant  answering,  must  answer  not  only  as  to 
facts  within  his  knowledge,  but  as  to  those  ascertainable 
from  books  and  papers  in  his  control.^  He  must  answer 
each  material  averment  directly,  unambiguously,  and 
without  evasion,  denying  or  confessing  the  real  substance 
of  each  charge  clearly.*'  But  he  need  not  answer  as  to 
the  same  matter  more  than  once,  even  if  that  matter  be 
repeated  in  the  charging  part  or  in  the  interrogatories ; 
and  the  bill  cannot  compel  discovery  of  the  defendant's 
evidence  of  his  own  defense.^  Complainant  has  a  right 
only  to  discovery  of  evidence  material  to  complainant's 
case. 

§  122.  Complainant  may  compel  full  answer.  In  order 
to  lessen  his  proofs,  or  in  order  to  obtain  discovery 
needed  as  a  basis  for  his  decree,  complainant  may  compel 
full  and  proper  answers  to  his  bill,  by  filing  exceptians 
pointing  out  the  allegations  insufficiently  answered. 

In  federal  practice  exceptions  for  insufficiency  of  an 
answer,  are  abolished;  but  the  logical  sufficiency  of  an 
affirmative  defense,  set-off,  or  counter-claim  set  forth  in 
an  answer,  may  be  tested  by  a  motion  to  strike  out;"^"*  and 
an  answer  is,  under  new  rule  30,  deemed  to  confess  all 
allegations  in  the  bill  which  are  not  answered. 

An  answer  so  called,  which  in  general  terms  ''denies 
all  the  allegations  of  the  bill,"  or  an  answer  which 
**  neither  admits  nor  denies  any  allegation  in  the  bill,  and 

4a— U.  S.  Eq.  Rule  30.  7— Wigmore  Evid.  Sec.  1896. 

5—1  Barb.  135.  7a— U.  S.  Eq.  Eule  33. 

6 — U.   S.   Equity  Eule  64. 


ANSWER  81 

calls  for  strict  proof  of  each  and  every  allegation  of  the 
bill,"  upon  motion,  should  be  stricken  from  the  files  as 
being  no  answer.^ 

§  123.  Not  required  to  answer  certain  allegations.  In 
answering  one  is  not  bound  to  answer  allegations  which 
are  purely  scandalous,  impertinent,  immaterial  or  irrele- 
vant," nor  anything  which  may  subject  him  to  a  penalty, 
forfeiture,  or  criminal  prosecution  ;^''  but  if  an  answering 
defendant  relies  upon  this  objection,  he  should  specif}^  it, 
as  a  ground  for  refusing  the  discovery. ^^  A  defendant 
is  not  required  to  answer  what  would  involve  a  breach 
of  professional  confidence. 

§  124.  Avoid  pleading  conclusions  of  law.  In  an  an- 
swer, statements  of  evidential  facts  should  be  avoided  as 
far  as  possible,^^""  but  in  answering  ''fully  with  attendant 
details"  as  is  required  by  bills  in  equity,  this  cannot 
always  be  done,  and  in  alleging  fraud  or  usury  the  evi- 
dential facts  constituting  fraud  or  usury  must  be 
pleaded.^2  As  a  rule  conclusions  of  law  should  be 
avoided.  Where  there  is  a  belief  concerning  a  fact,  an- 
swers may  and  should  be  made  upon  one's  best  informa- 
tion and  belief,  as  well  as  upon  knowledge.^ ^ 

§  125.  Averments  in  the  answer  and  proofs  must  cor- 
respond. An  answering  defendant  must  set  forth  the  na- 
ture of  his  defense,  because  he  cannot  take  advantage  of 
matters  of  defense  shown  by  the  evidence,  unless  they  are 
set  up  in  his  answer.^^  If  he  wishes  to  introduce  proof  of 
fraud  on  the  part  of  complainant,  he  should  set  forth  the 
evidential  facts  in  his  answer,  as  no  presumption  exists 


8— U.  S.  Eq.  Eules  30  and  33.  11a— U.  S.  Eq.  Eule  30. 

9— Davis  V.  Collier,  13  Geo.  485.  12— Fitzpatrick  v.  Beatty,  1  Gilm. 

10 — Adams    v.    Porter,    55    Mass.  454;  Hosier  v.  Norton,  83  111.  519. 
171.  13—2  Dan.  257. 

11— Legget    V.    Postley,    2    Paige  14^-2  Dan.  240;  1  Barb.  137;  Mil- 

N.  Y.  599.  lard  v.  MiU^d,  221  lU.  92. 
E.  P.— 6 


82  EQUITY  PLEADING  AND  PRACTICE 

in  favor  of  an  answer  any  more  than  in  favor  of  any  other 
pleading.  Alleg-ations  in  an  answer,  and  proofs  intro- 
duced by  defendant,  must  agree  to  render  the  defense 
available. 

§  126.  To  reserve  benefit  of  demurrer,  answer  must 
specify  the  ground  of  demurrer  as  a  defense.  The  ob- 
jection that  there  is  adequate  remedy  at  law,  will  not  be 
considered  by  the  court  after  filing  an  answer  not  specif y- 
ing  such  objection,  but  merely  ''claiming  the  same  ad- 
vantage as  though  defendant  demurred  to  the  bill."^^ 

In  federal  practice,  new  rule  29  provides  that  the  sep- 
arate pleading  known  as  a  ''demurrer"  is  abolished,  and 
tliat  all  objections  formerly  raised  by  demurrer,  shall  be 
made  by  "motion  to  dismiss"  the  bill,  or  by  answer.  If 
such  objection  is  made  in  the  answer,  it  should  plainly 
specify  the  question  of  law  involved  in  the  objection. 

§  127.  No  affirmative  relief  upon  an  answer.  No  af- 
firmative relief  w^ill  be  granted  to  a  defendant  upon  an 
answer  as  a  rule.  To  get  relief  beyond  mere  defense, 
he  must  file  his  cross-bill.  But  in  cases  where  the  maxim 
that  he  who  seeks  equity  must  do  equity,  can  be  applied, 
the  court  may  require  the  complainant  to  do  equity  to 
defendant  without  a  cross-bill  as  a  condition  to  granting 
relief.  And,  in  some  jurisdictions,  the  existence  and 
priority  of  different  liens  may  be  determined  upon  an- 
swer, for  the  purpose  of  sharing  in  the  surplus  proceeds 
of  sale,  as  discussed  under  the  subject  of  cross-bills. 

In  federal  equity  practice  affirmative  relief  is  obtained 
by  answer.^'^* 

§  128.  Testing  the  legal  sufficiency  of  an  answer.  The 
usual  method  of  testing  the  legal  sufficiency  of  an  answer, 
is  by  "a  motion  setting  the  case  for  hearing  on  bill  and 
answer."^"     This  will  raise  the   question  whether   the 

15— Ljiw  V.  Ware,  238  111.  360.  16— Banks  v.  Manchester,  128  U. 

15a— U.  S.  E(}.  Rule  30.  S.  244. 


ANSWER  83 

facts  averred  or  denied  in  the  answer,  constitute  a  defense 
to  the  case  stated  in  the  bill.  The  pleading  known  as  a 
** demurrer"  is  not  used  against  an  answer,  nor  are  ^'ex- 
ceptions" used  for  this  purpose,  ''Exceptions"  to  an 
answer  are  written  exceptions  for  insufficient  answers 
to  allegations  of  the  bill.  "Exceptions"  cannot  raise 
the  question  of  insufficient  ground  of  defense. 

When  a  case  is  heard  "upon  Bill  and  Answer,"  the 
matters  of  fact  well  pleaded  in  the  answer,  are  deemed 
to  be  true,  whether  answer  under  oath  has  been  waived 
or  not,  and  the  case  is  heard  upon  the  allegations  of  the 
bill  admitted  by  the  answer,  on  the  one  side,  and  the  facts 
as  claimed  in  the  answer,  on  the  other  side.^'^  Unless  the 
allegations  in  the  bill,  expressly  admitted  by  the  answer, 
are  sufficient,  after  the  explanations  and  denials  in  the 
answer,  to  clearly  entitle  the  complainant  to  the  relief 
prayed  for,  his  suit  will  fail.  Only  the  strongest  reasons 
therefore,  will  justify  a  complainant  in  going  to  a  "hear- 
ing on  the  bill  and  answer. ' '  ^^ 

In  federal  practice,  under  new  rule  33,  a  "motion  to 
strike  out"  is  used  to  test  the  legal  sufficiency  of  an 
answer  as  a  defense. 

§129.  Exceptions  to  an  answer.  In  most  jurisdic- 
tions an  answer  may  be  excepted  to  for  insufficiency, 
or  for  scandal  or  impertinence.  Exceptions  for  insuffi- 
ciency will  be  allowed  where  material  allegations  or  in- 
terrogatories in  the  bill  are  not  fully  answered, ^^  or  where 
the  answer  sets  up  questions  of  law  instead  of  facts. 
Exceptions  for  impertinence  or  scandal  must  point  out 
the  objectionable  matter.  Exceptions  must  be  filed  be- 
fore filing  replication.^*^     Even  if  answer  under  oath  is 

17 — Leeds    v.     Insurance    Co.,    2  19 — Stafford   v.    Brown,    4    Paige 

Wheaton  380;  Banks  v.  Manchester,  88. 

128  XJ.  S.  244;   Eoach  v.  Glos,  181  20— Coleman   v.    Lynde,    4    Band. 

111.  440.  454, 

18 — Contee   v.   Dawson,   2   Bland. 
264, 


84  EQUITY  PLEADING  AND  PRACTICE 

expressly  waived  in  the  bill,  answers  must  be  full  and 
direct,  or  exceptions  will  lie. 

But  in  the  federal  practice,  exceptions  for  insufficiency 
are  abolished.  If  the  answer  is  deficient  as  a  defense, 
the  court  ^^ill  strike  it  out.  If  discovery  is  insisted  upon 
it  can  be  obtained  by  filing  interrogatories,  which  must 
be  answered  under  oath. 

§  130.  Waiving  answer.  Going  to  a  trial  and  proofs 
without  defaulting  defendant  for  want  of  answer,  or 
without  getting  a  rule  on  him  to  answer,  waives  the 
answer.2^ 

§  131.  Brief  review  table  of  defensive  pleadings.  In 
order  that  the  student  may  obtain  a  ready  comprehension 
of  the  various  functions  and  purposes  of  the  different 
defensive  pleadings,  it  is  suggested  that  the  following 
table  be  memorized 


21— Jackson   v.   Sackett,   146  111, 
646. 


ANSWER 

Review  Chart  of  Defensive  Pleadings 


85 


tn  t-i 
ctf  O 


X3£ 


ll 

o  ^ 

«a 

0^ 

T3S     . 

3»j 

CO   "^ 

to  (D  O 

»|5 

1 

cfl  o 

2  S-a  t  a 

CD  C  c—  O 

-,  o  o  a  a 

C  a  a  a  cs 

38-3 
g  » t< 

§■0  0 
•Cm- 73 

0  a) 

o 

0>-)i-)iJp-l 

M 

u-S      oo 


3      =:  -v    -a  e 


5  o 


H.3' 


3  O 


■a  a 

2a 


a=5 


4  ;>  b<  ki 
3  a  a  a 


a  a 

»5- 


o  -  >. 

■2c=3 

^•cE. 

c  -„„- 

t4     0)     t-< 

o  o 


oS 


£^ 

2  o 

a  * 


xs-a 


<D  a 


—  i3  o 

c  c  c 

«  o  a 

, . 

5aS 

-T3  a 

S 

a®® 

Ui 

^2-§ 

a 

^CS 

£i 

sa^ 

o 
H 

a  ail 

'!)! 

S 

c 

•^ 

o 

J 

ja 

fcLft 

d 

^ 

L^ 

o 

H 

0 

d 

c 

c 

a 

o 

+^ 

a 

T3 -a 

Uc 

>. 

<u 

-oft 

COS 

"  IB     " 

^V  u 
S*30 

■"  3"" 

o|o| 


r-a-s 


g-^ea 

llil 


> 

a 

s 

2 

(i5 

Sfl 

r. 

hi 

OJ 

""•a 

i 

a 
J. 

3 

Sfa 

S 

^ 

01 

3 

■EL  =3 

R 

o 

.n 

* 

a>  0, 

■o 

>>3 

c 

^ 

t3 

I>  m 

©  a 

a 

if 

a 

a 

s 

C 

2 

3 

o 

«  a  Bi  " 

asp«-l 

H  -  K -1 


J!    ffl  01  3  a 

ft  £ 


a.a§ 


a  u3 

O  OJ 


0.® 
a)  © 

S  ° 
3« 


at;  to 

ss 

c  a  2 

PZ 

I?. 

5lr 

CHAPTER  Xn 

Replication 

§  132.  Definition.  A  replication  is  complainant's 
pleading  in  response  to  defendant's  answer,  or  plea.  It 
re-asserts  the  truth  and  sufficiency  of  the  bill,  and  denies 
the  truth  and  sufficiency  of  the  answer,  or  plea.^ 

§  133.  Effect  of  omitting  replication.  In  most  juris- 
dictions an  answer  or  plea  is  taken  as  true  unless  chal- 
lenged by  replication.  The  complainant,  not  having  re- 
plied, can  offer  no  proof,  except  matter  of  record.  Fail- 
ure to  reply  confesses  the  new  matter  in  the  answer,  and 
also  the  truth  of  the  denials  in  the  answer,^  But  a  rep- 
lication is  waived  if  the  parties  go  to  trial  and  proofs 
without  it.^  Upon  an  amended  answer,  or  upon  a  further 
answer  to  an  amended  bill,  a  replication  should  be  filed. 

§  134.  Replication  brings  the  cause  to  issue.  If  the 
complainant  neither  excepts  to  the  answer  for  insuffi- 
ciency, or  for  impertinence,  nor  amends  his  bill  to  meet 
new  facts  in  the  answer,  nor  goes  to  a  hearing  ''upon 
bill  and  answer"  to  test  its  sufficiency,  he  must  file  his 

1 — 1  Barb.  249.  the  answer  shall  be  taken  as  true, 
2 — The  Illinois  Chancery  Act  and  no  proofs  will  be  admitted  ex- 
(sec.  28)  provides  that  the  replica-  ccpt  matters  of  record  (111.  Chanc- 
tion  shall  be  filed  "in  four  days  cry  Act,  sec.  29).  This  statute  con- 
after  the  complainant  or  his  attor-  fers  upon  defendant  the  right  to 
ney  shall  be  served  with  notice  of  force  complainant  to  go  to  a  hear- 
answer  filed."  If  he  does  not  so  ing  as  upon  bill  and  answer,  for 
file  the  replication  after  such  notice,  failing  to  file  replication  within  four 
the  cause  may  procesd  to  a  hearing  days, 
on  bill  and  answer;  in  which  case  3 — Plot  v.  Davis,  241  111.,  434. 

86 


'  REPLICATION  87 

replication.  This  puts  in  issue  all  the  facts  set  forth  in 
the  bill  and  not  admitted  in  the  answer,  and  the  cause  is 
ready  for  proofs. 

In  federal  practice  a  replication  is  not  necessary  ex- 
cept when  an  answer  asserts  a  set-off,  or  a  counter-claim ; 
the  answer  being  deemed  to  bring  the  cause  to  issue,  and 
any  new  affirmative  matter  in  the  answer  is  deemed  to 
be  denied  by  the  plaintiif  without  filing  a  replication.^ 
After  the  lapse  of  time  for  taking  depositions  the  cause 
must  be  placed  on  the  trial  calendar.'  When  the  answer 
asserts  a  set-off  or  counterclaim  the  replication  should 
be  not  a  general  replication,  but  a  special  one  to  meet  the 
facts  of  the  answer. 

§  135.  Amendments  in  some  states  take  the  place  of 
special  replications.  By  statute  in  some  jurisdictions 
the  replication  ''must  be  general,  but  with  a  like  ad- 
vantage as  if  special."  Thus  special  replications,  admit- 
ting part  of  the  answer  and  denying  the  rest,  or  setting 
up  new  facts  in  reply  to  new  facts  in  the  answer — have 
become  almost  obsolete  in  such  jurisdictions,  such  new 
facts,  in  pleading  to  an  answer,  being  set  up  in  the  form 
of  an  amendment  to  the  bill  (by  adding  a  charging  part 
to  the  bill),  meeting  and  avoiding  the  defenses  presented 
by  the  answer.  Of  course  no  such  amendment  is  neces- 
sary if  such  defenses  already  have  been  anticipated  and 
avoided  by  a  charging  part,  or  in  the  stating  part  of  the 
original  bill. 

§  136.  When  filing  of  replication  is  waived.  If  de- 
fendant treats  the  cause  as  if  at  issue,  and  joins  with 
complainant  in  taking  evidence,  without  objection,  they 
will  thereby  waive  the  filing  of  replication. 

§  137.  Replication  need  not  be  signed.  Unless  required 
by  statute,  replications  need  not  be  signed  by  counsel 
nor  be  verified  by  oath. 

4— U.  S.  Eq.  Eule  31.  5— U.  S.  Eq.  Rule  56. 


CHAPTER  XIII 

Amendments,  Supplemental  Pleadings,  and 
Interrogatories 

§  138.  Nature  of  amendments.  Amendments  may  be 
made  to  correct  formal  defects,  mistakes,  defective 
statements ;  also  to  amplify  allegations,  and  to  add  neces- 
sary allegations;  also  to  add  a  new  claim,  if  consistent 
with  the  pleading  amended;  also  to  make  new  parties, 
or  to  transpose  parties  from  one  side  to  the  other.  In 
federal  practice  the  court  may  at  any  time,  in  further- 
ance of  justice,  upon  such  terms  as  may  be  just,  permit 
any  process,  proceeding,  pleading,  or  record,  to  be 
amended,  or  material  supplemental  matter  to  be  set  forth 
in  an  amended  or  supplemental  pleading.^ 

§  139.  Amendment  should  not  make  a  different  case. 
An  amended  bill  should  not  be  on  a  ground  repugnant  to 
the  original  bill,  nor  present  an  essentially  different,  or 
new  case;  but  a  federal  court  must  disregard  even  such 
an  error  if  the  substantial  rights  of  the  parties  are  not 
affected  thereby.^* 

§  140.  Amendments  to  meet  new  facts  in  the  answer. 
Filing  a  replication  is  a  sufficient  denial  of  the  answer; 
but  if  complainant  desires  to  confess  and  avoid  new 
defensive  facts  in  the  answer,  the  bill  should  be  amended 
by  adding  a  '' charging  part,"  charging  that  such  defense 
''will  be  pretended,"  and  charging  the  facts  which  avoid, 
invalidate,  the  defensive  facts.^     In  federal  practice  any 

1— U.  S.  Eq.  Eule  19. 

la— U.  S.  Eq.  Rule  19. 

2 — Connorton  v.  Millar,  41  Mich. 
608;  Harding  v.  Durand,  138  III. 
515. 

88 


AMENDMENTS  89 

new  or  affirmative  matter  in  an  answer  is  deemed  to  be  put 
in  issue  and  denied  hj  the  plaintiff  without  his  filing  any 
replication  or  amended  pleading.^  In  old  chancery  prac- 
tice special  replications  were  used  to  meet  new  defensive 
facts  in  the  answer,  but  in  most  jurisdictions  special 
replications  are  abolished.  Plaintiff  may  otherwise 
amend  his  bill,  so  his  case  may  be  consistent  with  the 
new  facts  in  an  answer,  or  so  that  he  may  take  advantage 
of  an  admission  made  in  the  answer. 

§  141.  When  amendments  may  be  made.  Amendments 
of  formal  defects,  are  freely  permitted  at  any  stage,  but 
those  substantially  changing  the  case  are  rarely  allowed 
in  later  stages.  An  amendment  otherwise  proper  may 
be  refused  for  delay  in  applying  for  leave  therefor. 
Before  answer,  amendments  to  a  bill  are  liberally 
allowed;  also  before  replication.*  Upon  demurrer  sus- 
tained, plaintiff  is  in  most  cases  allowed  to  amend  his 
bill.  Amendments  after  answer,  rest  in  the  discretion 
of  the  court.^  After  pleading  filed  by  defendant  consent 
of  court  or  defendant  must  be  obtained  to  amend.*^  After 
evidence  has  been  taken,  and  before  decree,  the  bill  may 
be  amended  to  conform  to  the  proofs  taken,  where  the 
parties  have  treated  the  matter  of  the  amendment  as  if 
in  issue ;  ^  but  not  otherwise,  except  under  special  cir- 
cumstances.^ At  the  final  hearing,  amendments  are  al- 
lowed when  necessary  for  justice.^  After  decree,  amend- 
ments are  seldom  permitted,  and  never  if  the  effect  would 
be  to  present  a  new  claim,  or  present  a  materially  differ- 
ent case.  Amendments  may  be  permitted  after  decree  to 
correct  a  clerical  error. 

3— U.  S.  Eq.  Eule  31.  8— Bowen  v.  Idley,  6  Paige  N.  Y. 

4— U.  S.  Eq.  Eule  29.  46. 

5— Craig  v.  People,  47  111.  487.  9— Koch  v.  Both,  150  111,  212. 
6— U.  S.  Eq.  Eule  28. 
7— Gordon   v.    Eeynolds,    114    111. 
123. 


90  EQUITY  PLEADING  AND  PRACTICE  j 

• 

§  142.  Leave  of  court  must  be  obtained  to  amend.  Al- 
lowing any  amendment,  rests  in  the  discretion  of  the 
court,  and  leave  to  amend  must  be  obtained  by  an  order 
of  court,  in  the  absence  of  a  statute  or  rule  of  court  to  the 
contrary.  The  substance  of  the  proposed  amendment 
should  be  submitted  with  the  application  for  leave,  and 
the  facts  making  the  amendment  necessary  should  be 
stated.^*^ 

§  143.  Method  of  amending  the  bill.  Minor  amend- 
ments are  sometimes  made  by  interlineations  in  the 
original  bill,  if  they  do  not  seriously  deface  it.  The  bet- 
ter practice  is  to  amend  by  separate  bill.  The  amend- 
ment must  be  actually  made ;  neither  a  stipulation  nor  an 
order  for  an  amendment  will  be  treated  as  an  amend- 
ment.^^ Irregularity  of  an  amendment  may  be  objected 
to  by  a  motion  to  take  it  from  the  files.  A  demurrer  is 
the  proper  way  to  test  the  merits  of  an  amendment,  and  a 
plea  can  be  filed  to  an  amendment  of  the  bill,  as  well  as  to 
the  original  bill. 

§  144.  Amending  the  answer.  An  admission  in  an  an- 
swer cannot  be  retracted  by  an  amended  answer,  unless 
the  admission  is  shown  to  have  been  made  by  mistake. 
In  the  federal  practice  an  answer  may  be  amended  by 
leave  of  court  or  judge,  upon  reasonable  notice  so  as  to 
put  any  averment  in  issue  when  justice  requires  it.*^ 
Also  upon  motion  to  strike  out  for  legal  insufficiency, 
the  court,  if  the  answer  is  amendable,  may  permit  amend- 
ment upon  terms.^^ 

§  145.  New  answer  to  amended  bill.  Where  a  bill  is 
amended  to  conform  to  the  proof  already  taken,  an 
amended  answer  is  proper  to  present  the  new  issue  to  the 
court  upon  the  pleadings  in  the  regular  way,  and  also  for 

10— Walsh  V.  Smyth,  3  Bland.  Md,  12— U.  S.  Eq.  Kule  30. 

9-  13— U.  S.  Eq.  Rule  33. 

11— Wilaon  v.  King,  23  N.  J.  Eq. 
150. 


AMENDMENTS  91 

the  purpose  of  giving  the  defendant  an  opportunity  to 
allege  new  defenses  to  meet  the  amendment.^*  If  de- 
fendant treated  complainant's  proof  as  if  in  issue  when 
taken,  the  court  granting  leave  to  file  a  new  answer,  will 
probably  limit  an  amendment  to  the  answer  to  merely 
conform  to  the  proofs  already  taken  by  defendant.  Such 
amendment  is  then  needed  because  the  doctrine  that  al- 
legations and  proofs  must  correspond,  applies  to  the 
answer  as  well  a,s  to  the  bill.^^  Federal  rule  32  requires 
defendant  to  amend  and  file  his  answer  ten  days  after  an 
amendment  to  the  bill  is  filed,  or  suffer  a  default.  In  most 
jurisdictions,  where  complainant  materially  amends  his 
bill,  the  defendant  should  be  ruled  to  answer.^*' 

§  146.  A  material  amendment  vacates  all  default  or- 
ders. The  regular  and  proper  course  upon  a  material 
amendment  being  made  to  the  bill  is  for  the  court  to  set 
aside  all  default  orders.  If  the  court  does  not  expressly 
set  iaside  default  orders  in  such  case,  then,  nevertheless, 
the  mere  filing  of  a  material  amendment  to  a  bill,  of  itself, 
sets  aside  all  default  orders  previously  entered. 

§  147.  A  party  may  object  to  a  variance  in  the  proofs 
and  thus  force  an  amendment  or  keep  out  the  evidence. 
When  evidence  upon  a  point  not  in  issue  is  offered,  the 
opposite  party  may  prevent  such  evidence,  and  force  his 
adversary  immediately  to  amend,  by  making  the  specific 
objection  that  the  evidence  offered  is  not  relevant  to 
any  issue  made  by  the  pleadings.  The  court  may  reject 
the  evidence  or  permit  the  amendment,  if  it  is  necessary 
and  material,  but  it  will  also  give  the  objecting  party 
time  to  meet  the  new  issues. 

§  148.  Amendment  by  supplemental  bill.  When  a 
pleading  becomes  defective  by  events  occurring  after  its 

14 — South    Chicago    Brew.    Co.   v.  16 — Coman    v.    Lovett,   10    Paige, 

Taylor,  205  111.  142.  N.  Y.  559;  Harms  v.  Jacobs,  160  lU. 

15— Dowden    v.    Wilson,    108    III.  593. 
257. 


92         '     EQUITY  PLEADING  AKD  PRACTICE 

filiug,  effecting  a  change  in  the  interests  of  the  parties, 
or  in  the  subject  matter  of  the  suit;  or  if  through  newly- 
discovered  evidence  it  becomes  apparent  that  some  new 
l)arty  should  be  brought  in,  or  some  new  fact  be  alleged, 
the  defect  may  be  cured,  and  the  new  facts  alleged,  by 
filing  a  supplemental  pleading. ^"^ 

§  148A.  Bill  of  particulars  in  federal  courts.  A  fur- 
ther and  better  statement  of  the  nature  of  the  claim 
or  defense,  or  further  and  better  particulars  of  any  mat- 
ter stated  in  any  pleading,  may  in  any  case  be  ordered, 
upon  such  terms  as  to  costs  and  otherwise  as  may  be 
just.^8 

§  148B.  Interrogatories,  production  of  documents  in 
federal  court.  In  the  federal  court,  the  plaintiff  and  the 
defendant  after  filing  their  pleadings  may  file  interroga- 
tories in  writing  for  discovery  by  the  opposite  party  of 
facts  and  documents  material  to  the  support  or  defense 
respectively,  with  a  foot  note  stating  which  of  the  inter- 
rogatories each  individual  party  is  to  answer.  If  one 
of  the  parties  is  a  corporation,  the  court  may  order  the 
examination  of  any  officer  of  the  corporation,  upon  mo- 
tion therefor.  Each  interrogatory  must  be  answered 
fully  in  writing  under  oath,  and  the  answers  must  be  filed 
witliin  fifteen  days.  The  court  may  also  enforce  the 
production  or  inspection  of  documents  in  the  possession 
of  either  party,  containing  evidence  material  to  the  claim 
or  defense  of  his  adversary.  Either  party  also  may,  by 
a  demand  ten  days  before  trial,  call  on  the  other  to  admit 
in  writing  the  execution  or  genuineness  of  any  writing, 
saving  all  just  exceptions.^®. 

17— U.  S.  Eq.  Rule  34.  19— U.    S.   Eq.   Rule   58. 

18— U.  S.  Eq.  Rule  20. 


CHAPTER  XIV 
Evidence  in  Chancery 

§  149.  Evidence  is  limited  by  the  pleadings.  The  ob- 
ject of  pleadings  is  to  state  a  valid  claim  or  defense,  and 
to  limit  the  evidence  to  the  matters  pleaded,  and  there- 
fore as  a  rnle  no  evidence  will  be  considered,  except  that 
relating  to  matters  alleged  in  the  respective  pleadings. 

Under  general  allegations,  specific,  evidential  facts 
may  be  proved,  provided  they  are  covered  by  the  general 
allegation,  and  provided  the  allegation  serves  to  give 
notice  to  the  opposite  party  of  the  nature  of  the  evidence 
to  be  introduced.  | 

§  150.  Admissions  and  denials  by  the  pleadings,  by 
defaults,  by  stipulations.  Before  the  time  for  introducing 
evidence,  each  party  should  determine  what  facts  have 
been  admitted  and  what  have  been  denied,  (1)  by  the 
pleadings,  (2)  by  defaults,  (3)  by  agreements  or  stipula- 
tions in  writing.  | 

1.  Admissions  and  Denials  Implied  in  the  Pleadings. 
Admissions  or  denials  by  the  pleadings  may  be  implied 
imder  the  forms  of  pleading.  For  example,  filing  a  plea 
grants  the  truth  of  all  the  matters  well  pleaded  in  the 
bill,  and  not  denied  by  the  plea  ;^  filing  a  demurrer  grants 
the  truth  of  all  facts  properly  alleged  in  the  bill,  at  least 
so  far  as  arguing  the  demurrer  is  concerned ;  but  where 
an  answer  filed  does  not  deny  or  explain  an  allegation  in 
the  biU,  it  is  deemed  to  deny  such  allegation  in  most 

1—2  Dan.  396. 

93 


94  EQUITY  PLEADING  AND  PRACTICE  I 

jurisilictians,  and  is  deemed  to  confess  them  in   some 
jurisdictions.^ 

Express  Admissions  in  the  Pleadings.  Admissions 
by  the  pleadings  may  be  express:  All  admissions 
made  by  the  defendant  in  his  answer,  may  be  read 
by  plaintiff  in  evidence  against  him,  without  making 
the  denials  contained  in  the  answer,  evidence  in  defend- 
ant's favor.  But  where  instruments  are  set  forth  in 
haec  verba,  mistaken  averments  or  admissions  of  the 
legal  effect  of  such  instruments,  will  not  conclude  the 
pleader.' 

No  Admission  or  Default  VaijId  Against  an  Infant. 
Infants  and  persons  non  compos,  are  the  special  wards  of 
chancery  courts,  and  therefore  an  exception  exists  in  their 
favor.  Even  if  an  infant's  guardian  ad  litem,  in  his  an- 
swer, should  admit  certain  allegations  in  the  bill,  never- 
theless, as  against  such  infant,  complainant  must  strictly 
prove  each  such  material  allegation  just  as  if  it  had  been 
denied  by  the  answer.  Neither  a  default  nor  a  decree 
pro  confesso  can  be  entered  against  an  infant,  or  person 
non  compos. 

Admissions  by  Averments  of  Bill.  The  facts  posi- 
tively alleged  in  the  bill,  are  deemed  to  be  admissions 
made  by  the  complainant.*  The  complainant  cannot  use 
his  own  bill  as  evidence  in  his  favor,  unless  the  defendant 
by  his  answer  has  admitted,  expressly  or  by  implication, 
the  truth  of  certain  parts  of  th*  bill,  in  which  case  the 
complainant  may  use  such  portions  of  his  bill  as  the 
admissions  of  the  defendant.'^ 

Admissions  May  Be  Upon  Information  and  Belief. 
It  is  not  necessary  that  the  defendant  should  in  his  an- 
swer make  a  positive  admission  in  order  to  have  it  read 

2— U.  S.  Eq.  Rule  30.  5— McGowan  v.  Young,  2  Ala.  59S. 

3— Phillips  V.  Gannon,  248  111.  98. 
4—2  Dan.  306. 


EVIDENCE  IN   CHANCERY  95 

in  evidence  against  him ;  it  will  be  sufficient  if  he  alleges 
that  he  believes,  or  is  informed  and  believes,  it  to  be  true ; 
unless  it  is  accompanied  by  some  statement  which  pre- 
vents its  being  considered  as  an  admission." 

2.  Confessions  by  Default.  By  default  in  appear- 
ing, or  in  filing  a  pleading,  a  defendant  confesses  the 
entire  bill.  By  default  in  filing  a  replication  (in  those 
jurisdictions  where  replications  are  required),  complain- 
ant confesses  the  truth  of  an  answer,  unless  the  parties 
proceed  to  proofs  as  if  replication  were  filed."^ 

3.  Admissions  by  Expeess  Stipulation.  To  save  de- 
lay and  expense  parties  often  stipulate  in  writing  as  to 
certain  facts. 

All  other  material  allegations  which  are  not  confessed 
or  denied  in  the  manner  above  discussed,  whether  they 
occur  in  the  bill  or  in  defensive  pleadings,  must  be  proved 
by  evidence. 

§  151.  Taking  testimony.  Formerly,  all  testimony  in 
chancery  was  taken  secretly,  and  reduced  to  writing  upon 
written  interrogatories  and  cross-interrogatories,  before 
an  examiner,  neither  party  to  the  suit  being  permitted 
to  be  present,  even  by  counsel.  Neither  party  was  en- 
titled to  a  copy  of  the  interrogatories  prepared  by  the 
other  for  his  witnesses.  Each  party  drew  up  the  inter- 
rogatories for  his  own  witness,  and  the  witnesses  were 
separately  and  secretly  examined  by  the  examiner,  and 
no  part  of  the  testimony  was  disclosed  to  either  side 
until  publication  day,  when  no  more  evidence  could  be 
taken.  But  each  party  was  entitled  to  a  list  of  his 
opponent's  witnesses,  that  he  might  examine  them  upon 
cross-interrogatories.  But  since  he  neither  knew  what 
the  direct  interrogatories  were,  nor  how  they  had  been 
answered,   such  cross-interrogation  was  unsatisfactory 

6— Potter  V.  Potter,  1  Ves.  Sen.  7— Marple  v.  Scott,  41  111.  50. 

274. 


96  EQUITY  PLEADING  AND  PRACTICE 

and  harmful.  Full  directions  were  given  the  examiners 
how  to  proceed.  The  witness  was  not  permitted  to  see 
the  interrogatories  he  was  to  answer ;  each  one  was  read 
over  to  him  and  he  was  required  to  answer  it  in  full 
before  the  next  was  read.  After  the  testimony  was 
taken  it  was  filed  in  court,  wliere  it  remained  until  publi- 
cation day ;  by  which  is  meant  the  day  they  were  open  for 
inspection,  and  each  side  was  furnished  with  copies. 
Tlius,  after  the  cause  was  ready  for  hearing,  the  counsel 
for  the  first  time  learned  what  evidence  had  been  intro- 
duced.** 

This  old  practice  has  been  modified  in  United  States 
Courts  and  in  those  of  many  of  the  States.  The  modern 
tendency  is  to  allow  oral  testimony  in  open  court,  as  in 
law  cases,  and,  when  interrogatories  are  used,  to  allow 
inspection  of  interrogatories,  and  to  allow  oral  examina- 
tions by  counsel,  as  w^ell  as  examinations  upon  written 
interrogatories  propounded  by  examiners,  and  to  allow 
all  parties  and  counsel  to  be  present. 

In  the  federal  courts  oral  testimony  is  required  as  a 
rule,  and  the  court  passes  upon  the  admissibility  of  all 
e\idence  as  in  actions  at  law.  When  evideoace  is  offered 
and  excluded,  and  the  party  against  whom  the  ruling  is 
made,  excepts  thereto  at  the  time,  the  court  must  take 
and  report  so  much  thereof,  or  make  such  a  statement 
respecting  it,  as  will  clearly  show  the  character  of  the 
evidence,  the  form  in  which  it  was  offered,  the  objection 
made,  the  ruling  and  the  exception.'^  The  court  or  of- 
ficer may  in  his  discretion  appoint  a  stenographer  whose 
fees  are  taxed  as  costs."* 

Some  statutes  permit  oral  evidence  in  court  or  before 
the  master,  the  evidence  being  preserved  in  writing.^" 

It  is  still  the  more  usual  practice  to  take  the  evidence 
orally  and  reduce  it  to  writing  prior  to  the  court  hearing 

8— Dan.  Chap.  XX.  9a— U.  S.  Eq.  Rule  50. 

9— U.  8.  Eq.  Rules  46,  47,  48,  49,  10— Owen    v.    Eamstead,    22    111. 

50,  51,  52,   53,  54,  55,  56.  172. 


EVIDENCE  IN   CHANCERY  97 

of  the  cause,  and  it  is  still  usual  to  take  such  evidence 
before  a  master,  examiner  or  commissioner. 

In  the  federal  courts,  in  patent  and  trade-mark  cases, 
the  court  upon  petition,  may  permit  the  testimony  of  ex- 
perts whose  testimony  is  directed  to  matters  of  opinion, 
to  be  set  forth  in  affidavits.  If  the  opposite  party  desires 
to  cross-examine  the  expert,  he  must  be  produced,  or  the 
affidavit  cannot  be  used  as  evidence.^"* 

§  152.  Preserving  evidence  in  the  record.  In  chanceiy 
cases,  courts  of  appeal  determine  questions  of  fact  from 
the  e^ddence  in  the  record,  and  they  are  not  bound  by 
the  findings  of  the  lower  courts,  and  may  make  different 
findings  of  fact.  There  are  no  presumptions  in  favor  of 
the  validity  of  a  decree  in  chancery,  as  there  are  in  favor 
of  a  judgment  at  law.  Therefore,  all  proceedings,  includ- 
ing the  evidence  in  a  chancery  cause,  should  be  contained 
in  the  record  to  support  the  decree  and  so  that  all  testi- 
mony will  appear  for  the  reviewing  court. 

§  153.  Even  rejected  testimony  should  show  upon  the 
record.  Even  if  statutes  or  rules  of  court  permit  oral 
testimony  to  be  taken  on  trial  in  open  court,  as  at  law, 
a  stenographer  should  reduce  it  to  writing.^  ^ 

In  the  federal  courts  the  party  wishing  to  rely  upon 
rejected  testimony  taken  orally  before  a  court  or  master, 
must  see  to  it  that  the  court  or  master,  preserves  the 
testimony  in  question,  and  the  objection  and  ruling  there- 

lOa — U.  S.  Eq.  Eule  48.  that  form  must  be  taken  down  or  its 
11 — "While,  therefore,  we  do  not  substance  stated  in  writing  and  made 
say  that,  even  since  the  Kevised  part  of  the  record,  or  it  will  be  en- 
Statutes,  the  circuit  courts  may  not  tirely  disregarded  here  on  an  appea.1. 
in  their  discretion,"  under  the  oper-  So,  too,  if  testimony  is  objected  to 
ation  of  the  rules,  permit  the  exam-  and  ruled  out,  it  must  still  be  sent 
ination  of  witnesses  orally  in  open  here  with  the  record,  subject  to  the 
court  upon  the  hearing  of  cases  in  objection,  or  the  ruling  will  not  be 
equity,  we  do  say  that  now  they  are  considered  by  us.  A  case  will  not  be 
not  by  law  required  to  do  so;  and  sent  back  to  have  the  rejected  testi- 
that,  if  such  practice  is  adopted  in  mony  taken,  even  though  we  might, 
any  case,  the  testimony  presented  in  on  examination,  be  of  the  opinion 
E.  P.— 7 


98  EQUITY  PLEADING  AND  PRACTICE 

to  in  writing  of  record,  in  the  same  manner  as  if  taken 
before  an  examiner. ^^  New  rules  46  and  50,  may  not 
cliange  this  practice. 

§  154.  Forms  in  which  evidence  in  equity  is  preserved 
of  record.  Testimony  in  chancery,  reduced  to  writing, 
usually  appears  and  is  preserved  in  the  record,  under 
the  form  of  (1)  a  judge's  certificate  of  evidence;  (2)  a 
master's  report;  (3)  depositions;  (4)  afifidavits. 

1.  A  Judge's  Certificate  of  Evidence:  Testimony 
orally  delivered  by  the  witness  himself  in  open  court, 
before  the  judge  who  passes  upon  it,  reduced  to  writing 
and  verified  by  a  stenographer,  then  certified  by  the 
judge  as  being  a  complete  and  true  record  of  the 
proceedings  and  evidence  before  him,  and  ordered  by  the 
judge  to  he  made  a  part  of  the  court  record  of  the  cause. 
Such  testimony  is  neither  subscribed  nor  verified  by  the 
witness. 

Documents  may  be  introduced  with  or  without  such 
oral  testimony ;  and  documents  may  constitute  the  entire 
subject  matter  of  the  certificate  of  evidence. 

2.  A  Master's  Eeport  or  Certificate  of  Evidence: 
Testimony  orally  and  publicly  delivered  by  the  witness 
himself  before  the  master  who  passes  upon  it,  reduced 
to  writing  and  verified  by  a  stenographer,  then  certified 
by  the  master  as  being  a  complete  and  true  record  of 
the  proceedings  and  evidence  before  him,  and  usually 
included  in  the  master's  report  or  certificate  to  the 
court;  which  report  of  itself  is  part  of  the  court  record 
of  the  cause. 

Testimony  before  the  master  is  usually  read  over,  sub- 
that  the  objection  to  it  ought  not  to  see  that  it  conforms  in  other  re- 
to  have  been  sustained.  Ample  pro-  spects  to  the  established  practice  of 
vision  having  been  made  by  the  rules  the  court."  (Blease  v.  Garlington,  92 
for  taking  the  testimony  and  saving  U.  S.  1;  Massenberg  v.  Dennison, 
exceptions,    parties,    if   they    prefer  107  Fed.  21.) 

to   adopt   some   other  mode   of   pre-  12 — Blease    v.    Garlington,    92   U. 

senting  their  case,  must  be  careful  S.  1. 


EVIDENCE   IN    CHANCERY  99 

scribed  and  verified  by  the  witness,  and  is  loosely  termed 
a  deposition,  because  so  subscribed  and  verified.  The 
only  requirement  laid  down  in  court  rules  or  chancery 
practice  is  that  testimony  taken  viva  voce  before  a  master 
shall  be  reduced  to  writing  by  the  master  or  his  clerk, 
and  preserved  in  the  master's  office  for  use  in  court,  if 
necessary.^  ^  There  seems  to  be  no  rule  of  court  or 
statute  requiring"  testimony  before  the  master  to  be  read 
over  and  subscribed  and  verified  by  the  witness  as  is  tlie 
case  with  depositions.  It  is  good  practice  in  most  juris- 
dictions to  have  it  done.^'* 

Documents  may  be  introduced  with  or  without  such 
oral  testimonj^,  and  may  form  the  entire  subject-matter 
of  a  master's  report  of  evidence;  as  for  example,  the 
trust  deed  and  notes  in  a  foreclosure  suit. 

Unless  the  master  is  directed  by  statute,  by  rule  of 
court,  or  by  the  order  of  reference,  to  report  the  evidence 
back  to  court,  he  need  not  do  so.^*^ 

3.  A  Deposition  :  A  sort  of  secondary  evidence, 
read  to  the  court  or  master,^ '^  being  testimony  under 
oath,  subscribed  ^^  and  verified  by  the  witness,  and  de- 
livered out  of  court  and  before  a  commissioner,  examiner 
or  notary  public,  and  by  such  officer  reduced  to  writing, 
verified,  certified  and  returned  to  the  court,  for  the  pur- 
pose of  being  read  to  the  court  or  master,  who  is  to  pass 
upon  the  evidence. 

Loosely  speaking,  all  deposing  under  oath,  whether 
before  the  court,  master,  special  commissioner,  examiner, 
notary,  or  in  an  affidavit,  is  called  a  deposition;  but  in 

13— McClay  v.  Norris,  9  111.  386;  16— Hayes  v.   TTaminond,   162   111. 

1  Barb.   502;    2   Smith's   147;    Eule  135;  Schnadt  v.  Davis,  185  III.  476. 

69    Eng.    Ch.   Orders,    1828;    N.    Y.  17— Weeks   on  Dep.  p.   6;   Haupt 

Ch.  Rule  105;  U.  S.  Eq.  Rule  65;  N.  v.  Heuninger,  37  Pa.  St.  138. 

J.   Ch.   Rules  44,   196;    Rule  4   gov-  18—1  Barb.  285. 
erning  Masters,  Cook  County,  111. 

14 — 1  Barb.  503;  Remsen  v.  Rem- 
sen,  2  Johns,  Ch.  N.  Y.  495;  Eisen- 
meyer  v.  Sauter,  77  111.  515. 


100  EQUITY  PLEADING  AND  PRACTICE 

a  strict  sense,  the  term  ** deposition"  should  be  limited 
as  in  this  paragraph  defined.  It  is  totally  different  from 
the  testimony  before  the  court  or  before  a  master,  and 
the  laws  regulating  depositions  have  no  application  to 
such  oral  testimony  before  the  court  or  before  the 
master,-"  Statutes  and  formal  rules  of  court,  differing 
in  every  jurisdiction,  govern  the  taking  and  returning 
of  depositions.  Oral  evidence  in  the  master's  office  is 
like  oral  evidence  before  the  judge.^^ 

Documents  may  be  introduced  in  connection  with  de- 
ponent's testimony. 

The  Reasons  foe  Veeifying  a  Deposition.  Testimony 
heard  and  taken  by  others  than  the  chancellor  or  master 
who  judges  the  case  upon  it — in  other  words,  depositions 
■ — should  be  as  well  authenticated  as  is  practicable,  and 
therefore  should  be  verified  and  subscribed  by  the  witness 
himself,  after  being  read  over  to  him,  as  well  as  be 
signed  and  vouched  for  by  the  notary  or  examiner  who 
writes  it  down. 

In  the  federal  courts,  all  evidence  offered  before  an 
examiner  or  other  like  officer,  together  with  any  objec- 
tions, must  be  saved  and  returned  into  the  court. ^^  Dep- 
ositions, to  be  used  before  the  court  or  before  the  master 
upon  a  reference,  will  be  permitted  by  the  federal  court 
only  for  good  and  exceptional  reasons.^^* 

4.  Affidavits:  Statements  made  out  of  court  with- 
out opportunities  for  cross-examination  and  sworn  to 
before  some  officer  empowered  to  take  oaths,  anciently 
much  used,  but  in  modern  times  limited  to  injunction 
eases,  and  a  few  other  ex  'parte  motions.  In  some  juris- 
dictions affidavits  may  be  used  to  support  the  bill  or  the 
answer,  upon  motions  to  dissolve  an  injunction,  and  upon 

20— Troy     Iron     v.     Corning,     7  21 — Gox  v.  Pierce,  120  111.  556. 

Blatchf.  16;  Mason  v.  Blair,  33  111.  22— U.  S.  Eq.  Eule  49. 

204.  22a— U.  S.  Eq.  Rule  47. 


EVIDENCE  IN  CHANCERY  101 

motions  for  a  continuance,  and  to  compel  the  production 
of  books  and  writings. 

As  a  general  rule  affidavits  can  be  used  as  evidence 
before  the  master  only  when  authorized  by  the  order  of 
reference,  or  when  under  the  same  circumstances  a  court 
may  proceed  upon  affidavits.^^  Depositions,  affidavits 
and  documents  previously  introduced  and  on  file  in  the 
cause,  may  be  used  as  evidence  before  the  master  if  pro- 
duced before  him.^^ 

As  stated  before,  affidavits  are  permitted  in  the  fed- 
eral courts  in  trade-mark  and  in  patent  cases,  but  with 
the  right  of  cross-examination  in  open  court,  reserved  to 
the  opposing  party. 

§  155.  Other  ways  in  which  evidence  is  deemed  to  be 
preserved  of  record.  Recitals  in  a  decree  serve  the  pur- 
pose of  preserving  evidence  of  record.^^  If  oral  evidence 
was  taken  and  not  reduced  to  writing,  or  if  the  judge's 
certificate  of  evidence,  or  the  master's  report  of  evidence, 
or  the  depositions  containing  evidence,  are  lost,  and  thus 
not  part  of  the  court's  record  of  the  cause,  the  decree 
will  still  be  deemed  to  be  supported  by  evidence  duly 
taken,  if  it  makes  specific  findings  of  ultimate  facts,  there- 
by showing  such  facts  to  have  been  proved  as  were  not 
admitted  by  the  pleadings.  But  the  bare  general  finding 
in  a  decree  that  ''all  the  material  allegations  in  the  bill 
are  proved  and  that  the  equities  of  the  case  are  with  the 
complainant,"  will  not  sustain  a  decree  granting  relief 
unless  such  decree  be  based  upon  the  findings  in  a  verdict 
of  a  jury,  called  to  try  the  facts,  or  upon  the  findings  in 
a  master's  report.^® 

§  156.  When  evidence  need  not  be  preserved  of  rec- 
ord.    Pro  eonfesso  decrees  need  not  be  supported  by 

23—1  Barb.  495.  26— Ohman  v.  Ohman,  233  IlL  682. 

24— U.  S.  Eq.  Rule  64. 
25— Gorman  v.    MuUins.,    172    111. 
349. 


102  EVIDENCE  IN   CHANCERY 

evidence  of  record,  nor  a  decree  dismissing  a  bill  for 
want  of  equity,  or  otherwise  dismissing  tlie  bill.^^*  But 
in  most  jurisdictions,  default  divorce  decrees  must  be 
supported  by  evidence  taken  in  open  court. 

§  157.  Exhibits  omitted  before  examiner  or  master, 
may  be  introduced  in  open  court.  Exhibits,  deeds  and 
other  written  instruments  relating  to  the  cause  may  be 
produced  and  proved  viva  voce  at  the  hearing  for  decree, 
where  the  party  using  them  has  omitted  to  establish 
their  genuineness  before  the  officer  taking  the  proofs.^^ 
A  satisfactory  excuse  must  be  given  for  not  making 
proof  in  the  usual  way.^^ 

§  158.  Objections  and  rulings  upon  evidence  in  chanc- 
ery. Examiners,  commissioners  and  notaries,  taking  de- 
positions, are  not  supposed  to  be  qualified,  like  judges 
and  masters,  to  pass  upon  objections  to  evidence;  and 
besides,  they  have  no  pleadings  to  show  what  issues  form 
the  case.  If  tJiese  officers  were  permitted  to  pass  upon 
evidence,  errors  of  ruling  would  be  too  numerous  and 
i^ause  too  much  inconvenience,  especially  when  depositions 
are  taken  at  distant  places.  Hence,  the  wise  practice 
that  all  evidence  deposed  before  such  officers  be  received 
subject  to  the  objections  stated,  and  that  the  officer  taking 
the  deposition  be  without  power  to  reject  or  pass  judg- 
ment upon  the  admissibility  of  evidence,  or  to  rule  upon 
objections.  Objections  should  be  stated  nevertheless. 
They  can  be  passed  upon  later  by  the  court  upon  a  motion 
to  suppress  the  deposition.  The  courts  have  power  to 
deal  with  the  costs  of  incompetent,  immaterial,  or  irrele- 
vant parts  of  depositions.-^'' 

§  159.  Objections  should  be  made  in  time  to  afford  cor- 
rection.   If  an  objection  is  intended  to  be  insisted  upon 

26a— Smith    v.    Trimble,    27    111.  27—1  Barb.  308. 

152;  Jackson  v.  Saekett,  140  111.  646;  28— Cosequa  v.  Fanning,  2  Johns 

First  Nat.  Bank  v.  Baker,   161   111  Ch.  N.  Y.  481. 
281.  28a— U.   S.    Eq.   Eule   51. 


EVIDENCE  IN  CHANCERY  103 

when  the  deposition  is  read  to  the  court  at  the  hearing 
for  decree,  or  to  be  insisted  upon  when  later  the  case  is 
appealed,  it  should  first  be  made  in  time  to  give  oppor- 
tunity for  correction,  if  correction  be  possible.  Objec- 
tions based  on  informalities  and  irregularities  in  taking 
proofs  should  be  made  by  motion  to  suppress  the  depo- 
sition before  the  hearing,  and  if  overruled,  an  exception 
should  be  taken;  but  all  more  substantial  objections  may 
be  made  at  the  hearing  for  decree,  either  before  qr  after 
the  evidence  is  read.  Incompetent  testimony  should  be 
objected  to,  lest  it  be  treated  as  competent,  in  the  absence 
of  objections.^^ 

§  160.  Exceptions  unnecessary  to  rulings  upon  ob- 
jections. Unless  required  by  statute  or  court  rule,-^"  ex- 
ceptions need  not  in  chancery  be  taken  or  preserved  to 
the  rulings  of  judges  or  masters  upon  objections  to  evi- 
dence.^*^  But  exceptions  should  be  preserved  at  a  jury 
trial  where  the  chancellor  has  submitted  an  issue  of  fact 
to  be  tried  by  a  jury. 

The  federal  courts  are  required  to  pass  upon  the  ad- 
missibility of  all  evidence  offered,  as  in  actions  at  law. 
Therefore  exceptions  to  the  ruling  of  the  court  must  be 
made  by  the  party  against  whom  the  ruling  is  made,  and 
the  court,  when  evidence  is  offered  and  excluded,  must 
take  and  report  so  much  thereof,  or  make  such  a  state- 
ment respecting  it,  as  will  clearly  show  the  character  of 
the  evidence,  the  form  in  which  it  was  offered,  the  objec- 
tion made  thereto,  the  ruling  of  the  court,  and  the  ex- 
ception.^"* 

§  161.  To  save  an  objection  for  review,  it  should  be 
insisted  upon.     To  save  for  review  an  objection  as  to  the 

29— Millard    v.    Millard,    221    111.  30— Swift  v.  Castle,  23  111.  209. 

86.  30a— U.  S.  Eq.  Eule  46. 

29a— Cook  Co.  111.  Chan.  Eule  2. 
(Mas.  ia  Chan.) 


104  EQUITY  PLEADING  AND  PRACTICE 

admissibility  of  evidence  the  objection  should  be  made 
and  insisted  upon  successively  before  the  master  when 
evidence  is  taken,  then  upon  objections  to  his  report,  and 
then  upon  exceptions  to  the  report  before  the  chancellor. 

§  162.  Judges  and  masters  should  express  their  rul- 
ings, upon  the  record.  Where  evidence  is  taken  in  open 
court,  or  before  a  master,  the  court,  and  master  both  have 
authority,^'  and  should  rule  upon  objections  to  evidence 
before  the  taking  of  the  evidence  is  closed.^^  A  party 
naturally  relies  upon  his  e\'idonce,  when  the  court,  even 
against  objection,  admits  it  into  the  record,  and  at  no 
time  later  rules  against  it.  A  ruling  is  necessary  to  in- 
form a  party  before  it  is  too  late,  whether  the  court  or 
master  regards  the  evidence  as  competent.  Otherwise 
parties  will  be  misled  into  relying  upon  evidence  which 
even  the  lower  court,  or  master,  may  secretly  deem  later 
to  be  improper  under  the  objection,  and  which  might  have 
been  corrected,  if  the  lower  court  or  the  master  openly 
had  ruled  against  it.  Objections  produce  little  impres- 
sion, but  a  ruling  of  the  court  or  master  produces  cau- 
tion. The  function  of  an  objection,  is  not  only  to  prevent 
incompetent  testimony,  but  also  to  give  warning  and  no- 
tice to  produce  competent  testimony.^^  A  party  may  suf- 
fer as  much  if  the  court  or  master  fails  to  rule  upon  ob- 
jections as  by  an  erroneous  ruling.^^ 

Objections  must  be  called  to  the  attention  of  the  chan- 
cellor and  a  ruling  should  be  insisted  upon  by  both 
parties;  and  objections  must  be  specific  enough  to  point 
out  the  grounds  of  incompetency.^^  If  a  ruling  is  not  in- 
sisted  upon,  it   may   be  deemed   to   be   waived.^''     In 

31— U.  S.   Eq.  Eule  62;   Wooster  35— Hamilton  v.  S.  N.  Gold  Min. 

v.  Gumbriner,  20  Fed.  167.  Co.,  33  Fed.  562;  Freeny  v.  Freeny, 

32 — Lathrop   v.   Bramhall,   64   N.  80  Md.  406. 

Y.  365;  U.  S.  Eq.  Rule  48.  36— ^Bunnel   v.    Stoddard,    4    Fed. 

33— Millard   v.    Millard,    221    111.  Case  No.  2135. 
86. 

34 — Lathrop   v.   Bramhall^   64  N. 
Y.  365. 


EVIDENCE  IN  CHANCERY  105 

some  jurisdictions  if  a  ruling  is  reserved  and  not  ren- 
dered and  the  evidence  is  harmful  and  incompetent,  the 
effect  of  reserving  and  not  ruling  is  the  same  as  if  the 
objection  had  been  overruled  and  exception  taken.^"  Fail- 
ure to  rule  after  reserving  decision  has  been  held  to  be 
ground  for  recommitting  the  report.^^  A  master  or  a. 
judge  may  reserve  his  ruling  till  later  evidence  throws 
more  light  upon  the  case,  but  the  rulings  should  be  an- 
nounced when  the  evidence  is  all  in.^^* 

A  judge  or  a  master,  though  ruling  against  testimony, 
should  still  allow  the  rejected  testimony  to  appear  in 
the  record,  subject  to  the  objection  and  ruling,  for  a  re- 
viewing court  to  pass  upon.^^  In  the  federal  courts  he 
cannot  refuse  this  right,**^  and  this  course  should  be 
pursued  where  there  is  any  doubt  about  the  competency 
of  the  evidence.^  ^  The  chief  concern  of  a  reviemng  court 
is  to  have  the  evidence  in  chancery  causes  appear  in  the 
record  for  review. 

§  163.  When  objections  to  master's  rulings  on  evi- 
dence are  brought  before  court  for  review.  In  most  juris- 
dictions the  general  practice  is  to  seek  the  opinion  of  the 
court  on  the  master's  ruling  upon  evidence,  when  the 
master  has  made  his  report.^-  But  in  some  jurisdictions, 
objections  to  the  master's  rulings  upon  evidence  should 
be  brought  before  the  chancellor  immediately  after  the 
evidence  and  testimony  before  the  master  is  closed,  and 
before  the  master  makes  his  report..^^ 


37— Lathrop   v.   Bramhall,   64  N.  41— Ellwood    v.    Walter,    103    111. 

Y.  365.  App.  219. 

38— Berrian    v.    Sanford,    1    Hun.  42—1   Barb.   484. 

(N.  Y.)  625.  43— Cook  County,  111.  Eq.  Eules; 

38a — Lathrop  v.  Bramhall,  64  N.       Dickinson    v.    Torrey,    91    111.    App. 
Y.  365.  304;  Glos  v.  Hoban,  212  111.  222. 

39—92  U.  S.  1. 

40 — Fayerweather     v.     Eitch,  89 
Fed.  529;  U.  S.  Eq.  Rule  46. 


CHAPTER  XV 

Motions  of  Course  and  Motions  not  of  Course 

§  164.  Interlocutory  motions  or  petitions.  An  interloc- 
utory motiou  is  an  application  or  request  made  to  the 
court.  Tor  some  interlocutory  order  commanding  or  for- 
bidding- certain  acts,  either  to  further  the  proceeding  or 
to  protect  the  rights  of  some  of  the  parties  to  the  suit. 
Such  applications  may  be  made  orally,  and  are  then 
called  motions;  or  they  may  be  made  in  writing,  when 
they  are  called  petitions.  A  request  should  be  made  in 
writing,  if  based  upon  a  long  statement  of  facts. 

§  165.    Motions  of  course  and  motions  not  of  course. 

Motions  of  course  are  those  which  are  granted  as  a 
matter  of  course  under  some  standing  rule  of  court,  or 
according  to  the  known  practice  of  the  court.  Motions 
not  of  course  are  those  which  will  be  granted  or  refused 
according  to  the  discretion  of  the  court. 

In  the  federal  courts  the  clerk  receives  and  grants  all 
motions,  rules,  orders,  and  other  proceedings  which  are 
grantable  of  course,  such  as  issuing  process  of  subpoena 
requiring  defendant  to  appear  and  answer  the  bill,  or 
such  as  issuing  final  process,  like  writs  of  attachment, 
sequestration  or  assistance,  to  enforce  and  execute  de- 
crees, or  to  grant  orders  that  bills  be  taken  pro  confesso} 

Upon  the  granting  of  a  motion,  the  solicitor  should 
himself  invariably  draw  up  the  court's  order  in  writing. 
It  is  seldom  that  tlie  court  or  its  clerk  can  have  the  details 
of  the  order  in  mind,  and  often  the  order  is  forgotten  and 
not  entered  by  the  court. 

1— U.  S.  Eq.  Rules  2,  5,  7,  8,  9. 

106 


CHAPTER  XVI 

Dismissal  of  Bill 

§  166.  Dismissals  by  plaintiff.  The  dismissal  of  a  bill 
"without  prejudice"  and  a  simple  dismissal,  have  the 
same  effect,  and  are  without  prejudice  to  the  bringing 
of  a  new  suit.  In  English  practice,  plaintiff  could  dis- 
miss his  bill  at  any  time  before  decree,  and  this  is  the 
rule  in  some  jurisdictions  in  the  United  States.  An 
order  of  court  must  be  obtained  to  effect  a  dismissal,  and 
in  the  United  States  there  is  a  decided  tendency  to  regard 
the  application  as  resting  in  the  discretion  of  the  court, 
to  be  exercised  with  regard  to  the  rights  of  the  parties. 
Therefore,  in  many  jurisdictions  there  can  be  no  ''dis- 
missal without  prejudice"  when  the  dismissal  would  in 
fact  be  with  prejudice  to  other  parties,  or  where  orders 
affecting  the  merits  have  been  entered,  or  where  the 
court  has  announced  its  decision,  or  after  demurrer  sus- 
tained and  leave  to  amend  not  availed  of,  or  after  an 
adverse  report  by  a  master,  or  after  a  cross-bill  asking 
affirmative  relief  has  been  filed. 

§  167.  Dismissals  by  defendant.  A  bill  will  be  dis- 
missed upon  hearing,  on  motion  of  defendant,  where 
plaintiff  unreasonably  delays  the  prosecution  of  the 
cause,  but  ordinarily  not  while  the  cause  is  pending 
before  a  master.  If  an  indispensable  party  is  lacking, 
and  it  is  impossible  to  bring  him  in,  the  bill  can  be  at 
once  dismissed.  In  some  jurisdictions  it  is  the  practice, 
even  before  a  hearing,  to  entertain  a  motion  by  defendant 
to  dismiss  the  bill  for  want  of  equity  appearing  on  its 

107  i 


108  EQIHTY  PLE^iDlNG  AND  PRACTICE 

face,  wliieli  cannot  be  cured  by  amendment.  Such  a 
motion  is  equivalent  to  a  demurrer.  If  a  plaintiff 
ii^iiores  intorlocutorj^  orders,  the  defendant  may  have  the 
bill  dismissed;  and  if  a  solicitor  is  not  authorized  in  the 
jiarticuhir  court  to  file  a  bill,  defendant  may  have  the 
bill  dismissed. 

§  168.  Dismissal  on  court's  own  motion.  The  court 
may  dismiss  a  bill  at  any  stage  of  the  proceedings  for 
want  of  equity,  upon  its  appearing  that  there  is  an  entire 
lack  of  equity  jurisdiction.^  If  a  bill  is  dismissed  ''for 
want  of  equity"  by  the  court  upon  hearing  for  decree, 
such  dismissal  may  be  pleaded  in  bar  to  a  new  bill  filed 
for  the  same  cause  of  action;  and  a  bill  cannot  be  dis- 
missed "without  prejudice,"  in  such  case,  when  a  new 
bill  must  cover  the  same  ground.  When  the  pleadings 
are  defective,  or  when  through  some  informality  in  the 
bill,  the  court  cannot  give  the  complainant  relief,^  or 
where  from  some  other  cause  the  bill  is  dismissed  without 
the  court  passing  upon  the  merits,  and  it  appears  that 
the  complainant  may  be  entitled  to  some  relief,  it  should 
be  dismissed  without  prejudice.^ 

§  169.  Dismissal  after  decree.  After  a  decree,  the  bill 
cannot  be  dismissed  except  by  consent;  but  after  a  re- 
versal of  a  decree  without  directions,  the  complainant 
may  dismiss  the  bill ;  the  effect  of  the  reversal  being,  to 
leave  the  cause  pending  for  hearing,  as  if  no  decree  had 
been  rendered.* 

1 — Richards  v.  Lake  Shore  R.  R.  3 — Story's  Eq.  PI.  See.  793. 

Co.,  124  111.  516.  4— Mohler   v.   WUtberger,   74   111. 

2 — Crozier  v.   Acre,    7   Paige,  N.      163. 
Y.  137. 


CHAPTEE  XVIL 
The  Hearing  in  Court 

§  170.    Procedure,  upon  hearing  for  decree.    Either 

party  may  set  the  cause  down  for  hearing  for  decree, 
after  the  cause  is  at  issue.  On  the  hearing,  the  com- 
plainant's bill  is  first  read,  or  stated  in  substance;  then 
the  defendant's  answer;  after  which  the  matters  in  issue 
are  stated  to  the  court,  together  with  the  equitable  points 
of  law  arising  thereon.  Then  the  complainant's  evidence 
is  heard,  or  if  the  evidence  is  not  taken  in  open  court, 
the  depositions  which  were  taken,  are  read  to  the  court, 
and  after  this  the  defendant 's  evidence,  and  then  again 
the  complainant's  evidence  in  rebuttal.  If  the  cause 
is  on  hearing  upon  a  master's  report,  the  evidence  is  not 
read,  but  the  master's  findings  are  read,  also  the  excep- 
tions thereto,  if  any  were  filed.  After  this  follows  the 
argument  of  the  complainant's  solicitor,  which  is  fol- 
lowed by  that  of  the  defendant 's  solicitor,  after  which  the 
complainant's  solicitor  may  reply. 

§  171.  Abstracts  of  evidence  specially  made  for  the 
court.  "Preparatory  to  submitting  a  cause  to  the  court 
for  hearing  upon  the  pleadings  and  evidence,  if  the  same 
are  voluminous,  proper  abstracts  thereof,  with  indexes 
thereto,  should  be  prepared.  The  evidence  bearing  upon 
each  issue,  or  distinct  question  of  fact,  should,  so  far  as 
possible,  be  grouped  together,  first  citing  all  the  evidence 
in  favor  of  counsel's  view  on  each  issue,  and  then  citing 
all  the  evidence  against  that  view ;  so  that  the  court  may 
easily  verify  the  evidence  on  each  issue.     There  is  no 

109 


110  EQUITY  PLEADING  AND  PRACTICE 

other  stop  iu  the  preparation  and  submission  of  a  cause, 
iu  which  care,  discrimination  and  thoroughness  on  the 
part  of  counsel,  are  of  greater  moment  than  in  bringing 
together  in  logical  and  lucid  form  and  sequence  the  vital 
issues  of  fact  in  the  case  and  the  evidence  applicable 
thereto."' 

§  172.  Petition  at  hearing  for  leave  to  amend  or  to 
present  new  evidence.  '*  After  taking  evidence  is  closed, 
and  before  final  decree,  if  a  party  desires  to  present  any 
new  matter  in  the  way  of  issue  or  evidence,  he  must 
apply  for  leave  to  the  court  by  petition  setting  up  tlie 
new  matter  or  issue,  so  that  its  relevancy  and  materiality 
may  be  judged,  and  asking  leave  to  introduce  further 
evidence,  or  to  amend  the  pleadings,  and  also  showing 
the  reasons  why  the  party  was  not  at  f^ult  in  not  earlier 
presenting  the  matter."^ 

1— Shiras,  Eq.  Pr.  2— Shiras  Eq.  Pr. 


CHAPTER  XVni 

Decrees  and  Decretal  Orders 

§  173.  Counsel  prepares  the  decree.  A  decree  is  the 
decision  and  mandate  of  a  court  of  equity,  upon  issues 
properly  presented  and  heard  by  the  court.  Decrees  are 
final  or  interlocutory.  When  the  decision  of  the  court 
is  made  known,  a  decree  in  accordance  therewith  should 
be  prepared  by  counsel  and  be  submitted  to  the  judge 
for  signature,  and  when  signed  it  must  be  filed  with  the 
clerk  for  entry.  It  should  clearly  set  forth  the  exact 
findings  of  fact,  according  to  the  pleadings  and  evidence ; 
and  should  clearly  set  forth  the  findings  of  law  by  the 
court,  upon  the  issue  or  issues  passed  upon;  and  if  by 
such  decree  the  defendant  is  ordered  to  do  or  refrain 
from  doing  any  act,  the  same  should  be  set  forth  clearly, 
in  the  mandatory  or  ordering  part  of  the  decree;  and, 
the  time,  mode  and  condition  of  doing  an  act  should  be 
definitely  stated.^ 

§  174.    Counsel  serves  copy  upon  opposite  solicitor. 

Counsel  serves  upon  the  opposite  solicitor  a  copy  of  the 
order  or  decree,  with  notice  of  the  time  and  place  he  will 
apply  to  the  court  to  have  the  order  or  decree  settled.  If 
it  is  satisfactoi^^,  opponent's  solicitor  usually  kidicates 
his  consent  by  an  endorsement  on  the  draft.  If  it  is  not 
satisfactory,  opponent's  solicitor  proposes  amendments 
to  the  draft  of  decree  and  appears  before  the  court,  and 
the  court  settles  the  decree.  When  a  mistake  or  clerical 
error  has  been  made  in  a  decree,  it  may  be  corrected  by 

1— Shiraa  Eq.  Pr. 

Ill 


1J2  EQUITT  PLEADma  AND  PRACTICE 

the  court,  upon  motion  or  petition,  made  after  entry  and 
before  enrollment.  The  party  making  the  application 
must  show  that  he  has  been  injured  by  the  error  or  mis- 
takG.2 

§  175.  Final  and  interlocutory  decrees.  A  decree 
which  finally  disposes  of  the  rights  of  the  parties  upon 
the  merits  of  any  branch  of  the  controversy  is  final ;  but 
if  the  merits  are  not  passed  upon,  and  the  order  is  made 
simply  as  an  additional  step  towards  a  final  determina- 
tion upon  the  merits,  it  is  an  interlocutor}^  decree. 

The  distinction  is  important,  because  the  right  to  appeal 
from  a  decree  is  statutory  and  must  be  strictly  followed, 
and  the  statute  usually  restricts  the  right  to  appeal  to 
final  decrees.  A  final  decree  remains  under  the  control 
of  the  court,  subject  to  be  modified  or  set  aside  only  dur- 
ing the  term  in  which  it  was  entered.  After  that  term, 
the  court  is  powerless  to  modify  it  or  to  enter  any  further 
orders,  except  those  necessary  to  enforce  the  decree.  On 
the  contrary,  a  decretal  order,  or  interlocutory  decree, 
remains  entirely  subject  to  the  control  of  the  court,  and 
it  may  be  modified  or  set  aside  at  any  time  and  at  any 
tenn  until  final  decree. 

§  176.  Final  decree.  If  the  decree  determines  litigated 
issues  and,  witliout  further  judicial  action,  fixes  rights 
and  liabilities  of  parties,  the  decree  is  final  for  the  pur- 
poses of  appeal,  although  the  trial  court  may  continue 
its  jurisdiction  over  the  case  for  ministerial  purposes, 
such  as  making  sale  of  propertj^,  or  taking  an  account 
rendered  necessary  by  the  terms  of  the  decree,  or  other- 
wise executing  the  decree  rendered. 

§  177.  Interlocutory  decree.  If  the  decree,  though  in 
form  final,  cannot  be  carried  immediately  into  effect, 
and  docs  not  execute  itself,  but  needs  further  judicial 

2— YarDell  v.  Brown,  170  111.  362. 


DECREES  AND  DECRETAL  ORDERS  113 

action,  it  is  interlocutory,  and  therefore  an  appeal  cannot 
be  taken. 

§  178.  Decree  in  part  final,  in  part  interlocutory.  A  de- 
cree may  be  in  part  final  and  in  part  interlocutory,  as 
where  it  settles  rights  as  to  a  part  of  the  subject-matter, 
and  reserves  for  further  consideration  questions  inde- 
pendent of  that  part;  or  where  a  decree  disposes  of  the 
whole  case  as  to  only  some  of  the  parties. 

§  179.  Pro  Confesso  or  default  decrees.  If  a  defendant, 
having  been  duly  served,  fails  to  enter  an  appearance 
within  the  proper  time,  or,  having  appeared,  fails  to  file 
a  plea,  demurrer  or  answer  to  the  bill,  by  the  proper  day, 
the  complainant  may  have  the  court  enter  an  order  finding 
such  defendant  to  be  in  default,  and  that  the  bill  be  taken 
pro  confesso. 

§  180.  Rule  days  for  defaults.  In  most  jurisdictions 
court  rules  provide  that  on  and  after  the  third  day 
of  each  term,  defaults  may  be  entered  as  to  defendants 
properly  served  who  filed  no  appearance  or  pleading. 

In  the  federal  courts  defendant  must  plead  within  20 
days  after  being  served  with  process,  or  be  subject  to 
default.^'^ 

§  181.  Complainant  may  take  default  decree  or  force 
an  answer.  Upon  default  the  cause  may  proceed  ex  parte, 
and  a  default  decree  therein  may  be  entered  f  or  the  com- 
plainant, if  he  requires  an  answer  to  enable  him  to  obtain 
a  proper  decree,  may  procure  process  of  attachment 
against  such  defendant,  upon  which  the  defendant  may 
be  arrested  and  held  until  he  fully  complies  with  the 
order  of  the  court  as  to  pleading  to  or  answering  the 
bill.  A  dec-ree  pro  confesso  is  also  known  as  a  "default 
decree"  or  a  "decree  by  default." 

2a— U.  S.  Eq.  Eule  16. 
3— U.  S.  Eq.  Eule  16. 
Thomson  v.  Wooter,  114  U.  S.  104, 
E.  P.— 8 


114  EQUITY  PLEADING  AND  PRACTICE 

§  182.     Default  decree  should  find  facts  as  to  service. 

In  onlor  to  support  a  decree  pro  confesso,  the  decree 
should  find  all  the  facts  showing  the  services  of  sum- 
mons, or  service  by  publication,  was  regular  and  accord- 
ing to  law,  unless  such  facts  have  been  found  and  recited 
in  a  prior  order  entering  the  default  of  record. 

§  183.  No  defaults  or  confessions  against  infants. 
Neither  a  default,  nor  a  decree  pro  confesso,  can  be  en- 
tered against  a  minor  or  against  persons  non  compos. 
Against  such  parties  there  must  be  evidence  in  the  record 
sufficient  to  sustain  the  decree. 

§  184.  Effect  of  order  pro  confesso.  The  order  that 
the  bill  be  taken  pro  confesso  is  not  in  itself  a  decree,  but 
only  a  decretal  order.  It  precludes  defendant  from  of- 
fering afBrmative  defenses  or  evidence,  and  establishes 
the  confession  of  defendant  to  the  truth  of  all  definite 
and  certain  allegations  of  the  bill;  but  allegations  not 
certain  must  be  supported  by  sufficient  proof.  In  any 
case,  however,  the  court  may  in  its  discretion  require 
proof.  Where  proof  is  taken,  the  decree  should  depend 
thereon  ancl  not  on  the  bill  alone.  No  decree  can  be 
entered  unless  the  bill  alleges  sufficient  facts  to  warrant 
a  decree.  Defendant  may  appear  and  show  that  the 
bill  does  not  warrant  the  decree  sought,  but  this  must 
appear  from  the  averments  of  the  bill. 

§  185.    Power  of  court  to  vacate  decree  pro  confesso. 

Tlie  power  of  the  court  over  default  decrees,  is  more  ex- 
tensive than  over  decrees  rendered  upon  a  hearing  of 
both  parties.  In  some  jurisdictions  a  default  decree  may 
be  set  aside  in  the  discretion  of  the  court,  upon  motion 
or  petition,  even  at  a  subsequent  term,  in  order  to  let 
in  a  meritorious  defense,  and  to  prevent  fraud  and  mis- 
take. Defendant  as  a  rule  is  required  to  show  a  reason- 
able excuse  for  his  failure  to  appear  or  answer,  and  must 
show  promptness  in  making  his  application  after  knowl- 


DECREES  AND  DECRETAL  ORDERS  115 

edge  of  tlie  decree,  and  must  show  that  he  has  a  meritor- 
ious defense. 

§186.  Enforcement  of  decrees  by  attachment  or  se- 
questration. It  is  one  of  the  maxims  of  equity  that  a  de- 
cree acts  in  personam.  By  this  is  meant  that  the  decree 
is  enforced,  if  necessary,  by  issuing  an  attachment  against 
the  person,  when  within  the  jurisdiction  of  the  court,  and 
also  by  sequestration  of  the  goods  and  lands,  within  the 
jurisdiction,  of  an  absent  defendant,  until  he  complies 
w^ith  the  decree.  A  decree  usually  orders  a  defendant 
personally  to  do,  or  cause  to  be  done,  or  refrain  from 
doing  certain  acts.  The  great  equity  remedies  of  compul- 
sion and  prevention,  actively  compel  or  prevent  particu- 
lar acts,  whereas  the  common  law  remedy  of  damages 
simply  compensates  for  wrongs  already  suffered.  The 
citizen  can  be  rescued  from  danger  by  equity;  he  can 
only  be  consoled  after  his  injury  by  law.  The  common 
law  courts  can  do  no  more  than  to  issue  process  to  satisfy 
the  plaintiff's  demand  by  seizure  and  sale  of  his  property. 
In  chancery  it  is  not  usual  to  issue  process  of  execution. 
But  it  may  be  done. 

Before  a  defendant  is  deemed  to  be  in  contempt  he 
must  be  personally  served  with  a  writ,  under  the  seal  of 
the  court,  which  recites  that  part  of  the  decree  which  the 
defendant  is  to  obey.  A  party  is  in  contempt  if  he  neg- 
lects to  comply  with  the  decree  within  the  time  therein 
specified.  If  the  party  has  been  served  with  such  a 
writ  and  he  neglects  to  obey  it,  the  fact  is  brought  to  the 
attention  of  the  court  by  affidavit,  and  a  writ  of  attach- 
ment is  issued,  upon  which  he  is  arrested  and  brought 
before  the  court,  and  if  he  does  not  purge  himself  of  the 
contempt,  or  comply  with  the  mandate  at  once,  he  is  com- 
mitted to  jail.^ 


4— U.  S.  Eq.  Eule  8. 


CHAPTER  XIX 
Examiners  and  Special  Commissioners 

§  187.  Examiner.  An  examiner  is  an  officer  of  a  chanc- 
ery coiut.  His  duties  are  to  receive  interrogatories  for 
the  examination  and  cross-examination  of  witnesses,  and 
to  examine  and  cross-examine  such  witnesses;  to  reduce 
the  depositions  to  writing,  and  to  read  them  to  the  wit- 
nesses before  they  sign  the  same.  He  is  authorized  to 
a(huinister  the  usual  oaths  and  to  take  the  usual  affirma- 
tions of  witnesses.  By  statutes  of  the  various  states, 
and  by  rules  of  practice  in  the  various  courts,  the  duties 
of  examiners  and  of  special  commissioners  are  now  per- 
formed also  by  notaries  public,  justices  of  the  peace, 
masters  in  chancery  and  judges  of  courts.  In  some  juris- 
dictions examiners  are  appointed  by  special  commission 
and  are  called  ''Special  commissioners." 

§  188.  Special  commissioners.  The  phrase  ' '  Special 
Commissioner"  means  a  person  or  officer  holding  a 
"special  commission"  in  the  form  of  letters  patent  is- 
sued by  a  government,  or  a  warrant  contained  in  an 
order  of  court.  Such  letters,  or  order  of  court,  define  the 
powers  or  duties  of  the  person  or  officer  so  specially 
commissioned.  In  chancery  practice,  special  commis- 
sioners are  persons  or  officers  specially  appointed  under 
a  dedimus,  or  commission  to  take  depositions,  or  to  exam- 
ine witnesses. 


116 


CHAPTER  XX 

Masters  in  Chancery 

§  189.  Nature  of  the  office.  A  master  in  chancery  is 
an  officer  of  a  court  of  equity,  and  acts  as  an  assistant 
to  the  chancellors,  performing  both  judicial  and  minis- 
terial functions.  His  duties,  though  often  judicial  in 
character,  are  held  in  some  jurisdictions  to  be  ministerial 
duties,  and  not  judicial.  His  duties  and  powers  are  gov- 
erned by.  statutes,  rules  of  court  and  the  general  prac- 
tice of  courts  of  chancery. 

§  190.  Duties  of  master.  The  matters  referred  to  a 
master  by  the  chancellors  vary.  He  may  be  ordered  to 
do  a  particular  ministerial  act ;  as  for  instance  to  take  the 
testimony  in  a  case  and  report  the  same,  or  to  take  the 
testimony  and  report  the  same,  together  with  his  conclu- 
sions thereon.  There  is  hardly  any  matter  in  a  chancery 
cause  which  the  chancellor  may  not  refer  to  a  master.  It 
is  the  practice  to  refer  to  masters  exceptions  for  scandal 
or  impertinence,  exceptions  to  an  answer  for  insufficiency, 
the  settling  of  interrogatories  as  to  their  relevancy,  and 
all  cases  involving  difficult  accountings,  or  involving 
voluminous  testimony. 

§  191.  Master's  acts  are  limited  by  statutes,  court 
rules,  and  the  order  of  reference.  Statutes  and  chancery 
rules  of  court  expressly  invest  a  master  with  certain 
powers.  Otherwise,  a  master  can  act  only  upon  an  order 
of  reference  entered  by  the  court.  The  master  must 
accept  tJie  order  of  reference  as  conclusive  of  all  matters 
embraced  therein.     Where  a  bill  is  taken  pro  confesso, 

117 


«118  EQUITY  PLEADING  AND  PRACTICE 

and  the  cause  is  referred,  defendant  cannot  offer  defen- 
sive evidence  before  flie  master.  The  order  of  reference 
is  to  be  construed  together  with  the  pleadings,  and  the 
master  cannot  entertain  any  claim,  or  decide  any  matter 
not  embraced  by  the  pleadings,  nor  can  the  master  per- 
mit an  amendment  of  the  pleadings ;  that  is  for  the  court 
to  do. 

§  192.  References  to  a  master  are  subject  to  the  court's 
discretion,  except  in  a  case  involving  an  accounting  or 
voluminous  testimony.  References  to  a  master  are  dis- 
cretionary with  the  court,  except  when  the  suit  involves 
a  complicated  accounting.  In  the  latter  case  a  reference 
is  necessary,  and  a  reference  is  also  necessary  where  the 
testimony  is  voluminous  and  conflicting;  ^  but  not  so 
where  amount  due  under  a  contract  is  a  simple  matter; 
nor  where  there  is  a  mere  computation  of  payments  and 
interest.  In  some  jurisdictions,  when  a  cause  is  at  issue, 
the  entire  cause  may  be  referred  to  a  master  to  hear  the 
evidence  and  arguments,  and  to  report  his  findings  upon 
the  entire  case.  But  in  federal  practice  the  court  cannot 
refer  all  the  issues  to  be  passed  upon  by  the  master 
except  upon  consent  of  the  parties.^' 

In  federal  practice,  save  in  matters  of  account,  a  refer- 
ence to  a  master  is  exceptional,  and  can  be  made  only 
upon  a  showing  that  some  exceptional  condition  requires 
it.'" 

§  193.    Duty  and  power  of  master  in  federal  courts.    In 

the  federal  courts  the  master  has  power  to  regulate  all 
the  proceedings  in  every  hearing  before  him  upon  refer- 
ences; and  he  has  full  authority  to  examine  the  parties 
in  the  cause,  upon  oath,  touching  all  matters  contained  in 
the  reference;  and  also  to  require  the  production  of  all 
books,  papers,  writings,  vouchers  and  other  documents 

1— Beale  v.  Beale,  116  111.  292,  lb— U.  S.  Eq.  Rule  59. 

la — Kimberly  v.  Arms,  129  U.  S. 
524. 


MASTERS  IN   CHANCERY  119 

applicable  thereto;  and  also  to  examine  on  oath,  viva 
voce,  all  Avitnesses  produced  by  the  parties  before  him, 
or  by  deposition,  according  to  the  Acts  of  Congress,  or 
otherwise,  as  provided  in  the  Equity  Rules ;  and  also 
to  direct  the  mode  in  which  the  matters  requiring  evi- 
dence shaU  be  proved  before  him;  and  generally  to  do 
all  other  acts,  and  direct  all  other  inquiries  and  pro- 
ceedings in  the  matters  before  him,  which  he  may  deem 
necessary  and  proper  to  the  justice  and  merits  thereof, 
'and  the  rights  of  the  parties.^ 

The  orderly  and  acceptable  procedure  is  to  present  to 
the  court  all  objections  and  questions  arising  before  the 
master  in  the  form  of  exceptions  to  his  report.^  Wit- 
nesses living  within  the  district  may,  upon  notice  to  the 
opposite  party,  be  subpoenaed  to  testify  before  the 
master.^  The  admission  and  rejection  of  evidence  rests 
within  the  sound  discretion  of  the  master.^  The  party 
must  proceed  with  the  matter  referred,  within  20  days." 
It  is  the  duty  of  the  master  to  speed  the  matter  referred.^ 

§  194.  Production  of  books  and  writings  before  master. 
If  the  order  of  reference  contains  a  direction  that  the 
parties  produce  before  the  master,  upon  oath,  all  books 
or  writings  in  their  possession  or  power  relating  to 
the  matter  of  the  reference,  and  that  the  parties  be  ex- 
amined upon  interrogatories,  as  the  master  shall  direct, 
the  words  ''as  the  master  shall  direct"  apply  to  both 
branches  of  the  direction,  namely,  to  the  production  of 
deeds,  and  to  the  examination  on  interrogatories;  and 
they  are  considered  important  as  vesting  the  master 
with  discretion  upon  the  subject  of  production.^ 


2— U.  S.  Eq.  Eule  62.  7— U.  S.  Eq.  Eule  59. 

3— Lull    V.    Clark,    20    Fed.    455.  8— XJ.    S.    Eq.    Eule   60. 

4— IT.  S.  Eq.  Eule  52.  9—1  Barber  480. 
5— U.  S.  Eq.  Eule  62;  Wooster  v. 
Gumbriner,  20  Fed.  167. 


120  EQUITY  PLEADING  AND  PRACTICE 

§  195.  Production  under  subpoena  duces  tecum,  or 
under  notice.  The  master  may  order  the  production  of 
books  and  papers  by  suhpoena  duces  tecum,  inserting  tlie 
words:  *'And  then  and  tliere  bring  with  you  and  pro- 
duce before  said  master  all  deeds,  books,  papers  and 
writings  in  your  custody  or  power  relating  to  the  matter 
of  reference,  and  more  especially  the  following."  ^*^  Or 
the  production  may  be  caused  by  taking  out  and  serving 
a  warrant  or  notice  signed  by  the  master  and  requiring 
the  production  of  the  certain  books  and  writings. ^"^ 

§  196.  Master's  discretion  to  order  production  is  lim- 
ited. Although  the  language  of  the  order  of  reference  is 
general  that  the  parties  produce  all  books,  papers,  etc., 
the  master  is  to  exercise  his  discretion  in  determining 
what  books  and  papers  are  necessary  to  be  produced. 
The  discretion  of  the  master  is  limited  by  the  rules  which 
guide  the  court  in  compelling  a  discovery  of  books  and 
documents  in  other  cases. ^^ 

§  197.    Master  may  not  permit  withdrawal  of  exhibits. 

The  master  has  power  to  receive  evidence,  but  cannot 
grant  leave  to  withdraw  exhibits  even  upon  parties  leav- 
ing copies  thereof.^-  Therefore,  the  master  should  ex- 
ercise caution  in  impounding  books  and  writings  belong- 
ing to  third  persons  not  parties  in  the  suit,  under  the 
name  of  evidence  in  a  cause. 

§  198.  Evidence  before  master.  In  the  absence  of  spe- 
cial restrictions,  a  master  has  power  to  receive  evidence 
for  the  proper  determination  of  any  matter  referred.  A 
witness  once  examined,  cannot  be  re-examined  before  the 
master,  without  an  order  therefor.  The  master  should 
be  personally  present  to  examine  witnesses.  Where  be 
has  power  to  rule  upon  an  objection  to  the  evidence,  he 

10— 7n  re  0 'Toole  Estate,  1  Tuck.  11—1  Barber  481. 

^  >«'.  Y.  12— Bolter  v.  Kozolwski,  211  111. 

10a— 1  Barber  481.  79. 


MASTERS  IN   CeANCERY  121 

should  rule  thereon,  to  show  how  he  will  regard  it  in 
making  his  report  ;^^  and  even  if  the  evidence  seems  to  be 
inadmissible,  the  master  (though  ruling  against  its  ad- 
missibility), should  as  a  rule  permit  the  evidence  to  go 
into  the  record  subject  to  the  objection  and  subject  to 
his  ruling,  so  as  to  avoid  the  necessity  of  a  re-reference 
in  case  the  court  should  deem  the  evidence  admissible.^'* 
Objections  should  specify  the  ground  of  objection  and 
should  be  made  when  the  evidence  is  offered.  In  most 
jurisdictions,  if  objections  are  overruled  by  a  master, 
exceptions  need  not  be  taken  to  the  master's  ruling,^^ 
and  the  master's  rulings  upon  evidence  can  be  reviewed 
by  the  court  upon  ''exceptions  to  his  report. "^*^  An 
Illinois  case  to  the  contrary  "  is  based  upon  a  contrary 
local  rule  of  court  ^^  which  requires  objections  to  the 
master's  rulings  upon  evidence  to  be  brought  to  the 
attention  of  the  court  before  the  master's  report  is 
filed.  Evidence  taken  by  one  master  cannot  be  consid- 
ered by  another  master  in  some  jurisdictions,  but  may  be 
considered  by  the  court.  ^^ 

In  federal  practice,  the  master,  probably  like  the  court, 
must  rule  on  the  admissibility  of  all  evidence  offered  and 
exceptions  to  his  rulings  must  be  preserved.^ ^* 

§  199.  Nature  of  hearing  before  master.  Upon  a  hear- 
ing before  a  master  in  chancery  the  parties  have  the 
same  right  to  be  heard,  by  themselves  or  by  counsel,  to 
introduce  evidence,  cross-examine  witnesses,  and  to 
take  the  various  steps  authorized  by  law,  as  if  the  hear- 
ing was  before  the  chancellor  instead  of  the  master. 

13 — Berrian  v.  Sanford,  1  Hun.  N.  18 — 'Cook  County,  111.  Chan.  Eule 

Y.  625.  2,   Governing   Masters   in   Chancery. 

14^Blease   v.    Garlington,    92    U.  19— Coel  v.  Glos,  232  111.  147 ;  Mc- 

S.  1;  U.  S.  Eq.  Rule  46.  Mahon  v.  Rowley,  238  111.  31. 

15— Swift  V.  Castle,  23  111.  209.  19a— U.   S.   Eq.   Rules  46,   62. 

16—1  Barb.  484. 

17 — Dickinson    v.    Torrey,    91    III. 
App.  297. 


122  EQUITY  TLEADING  AND  PRACTICE 

§  200.  Notice  of  hearing-  before  master.  It  is  neces- 
sary to  give  notice  to  the  opposite  party  when  testimony 
hefore  a  master  is  to  be  taken.  A  party  is  entitled  to  be 
present  and  hsten  to  the  testimony  of  a  witness  as  it  is 
detailed  liy  him  in  chief,  and  then,  or  as  soon  thereafter 
as  convenience  will  permit,  to  cross-examine  him;  and 
it  does  not  cure  the  error  of  denying  this  opportunity, 
to  allow  him,  at  some  subsequent  day,  to  have  the  wit- 
ness brought  before  the  master  in  chancery  for  liis  cross- 
examination.'^" 

§  201.  Reference  to  state  account.  Upon  a  reference 
to  a  master  to  take  and  state  the  accounts  between  par- 
ties, the  court  should  first  find  and  declare  the  rights  of 
the  parties,  and  the  rule  to  be  adopted  in  stating  the  ac- 
count; and  the  examination  should  be  according  to  such 
finding  and  such  rule.-*^  Each  party  should  bring  in  his 
whole  account,  for  the  whole  period  for  which  he  is  ac- 
countable, in  the  form  of  debtor  and  creditor.-'  The 
master  should  then  ascertain  from  the  parties  or  their 
counsel,  by  written  acknowledgments,  what  items  are 
agreed  to,  and  what  items  are  objected  to,  and  the  proper 
proofs  should  then  be  taken.  Any  party  not  satisfied 
with  the  accounting  may  examine  the  accounting  party .^^ 

§202.  The  master's  report.  The  master's  findings 
and  conclusions  are  embodied  in  a  document  called  the 
master's  report,  which  should  show  the  proceedings  under 
the  order  of  reference,  the  evidence  taken,  and  the  find- 
ings of  fact,  and  conclusions  of  law,  reached  by  the  mas- 
ter, in  such  fonn  and  manner  that  the  court  may  intel- 
ligently act  upon  such  report.^  ^ 

§  203.  Form  and  sufficiency  of  report.  A  master,  di- 
rected to  find  facts,  must  report  his  findings  of  the  ul- 

19b— U.  M.  Life  Ins.  Co.  v.  Slee,  21—2  Dan.  878. 

123  111.  94.  22— U.   S.   Eq.   Eule   63;,   2   Dan. 

20 — Rcmsen  v.   Eemsen,   2   Johns.       878. 
Ch.  495.  23— Schnadt  v.  Davis,  185  111.  476. 


MASTERS  IN   CHANCERY  123 

timate  facts,  and  not  items  of  evidence  tending  to  es- 
tablish them,  nor  mere  conclusions  of  law.  The  report 
should  not  contain  matters  of  argument  or  reasoning  in- 
support  of  its  conclusions,  but  should  disclose,  where 
the  matter  would  otherwise  be  doubtful,  the  basis  of  such 
conclusions,  by  reference  to  the  pages  of  the  evidence 
showing  the  testimony  pro  and  con. 

§  204.  The  master  should  find  as  to  each  ultimate  fact 
pleaded.  A  carefully  drawn  master's  report  should  con- 
tain an  express  affirmative  or  negative  finding,  as  to  each 
material  fact  pleaded  in  a  bill  or  answer,  or  a  finding 
that  a  certain  averment  is  not  supported  by  any  evidence, 
nor  confessed  in  any  pleading.  If  unable  from  the  evi- 
dence to  determine  a  fact,  the  master  should  find  it 
against  the  party  holding  the  affirmative.^ ^"^  After  each 
finding,  the  master  should  cite  the  number  of  the  page, 
or  exhibit,  containing  testimony  pro  and  con,  bearing 
on  the  finding.  Thus  the  report  vindicates  itself  before 
the  court.^^" 

§  205.  Master  must  draw  up  his  own  report.  The  de- 
cree of  a  court  is  usually  not  written  by  the  chancellor, 
but  by  one  or  more  of  the  solicitors  of  the  parties,  and 
is  signed  by  the  chancellor  after  the  opposing  party  has 
had  opportunity  to  argue  his  objections  thereto.  But 
the  parties  are  not  permitted  to  draft  the  master's 
report.  The  master  is  compelled  to  draft  his  own  re- 
port.2^ 

§  206.  But  counsel  may  file  briefs  requesting  particu- 
lar findings.  Counsel  on  either  side,  of  course,  has  the 
right  to  draw  up  and  file  with  the  master  a  written  brief 
and  argument,  stating  the  formal  findings  ^^^  of  fact  and 

23a — Bradley    v.    McLaughlin,    8  24 — Fitchburg  Steam  Eng.  Co.  v. 

Hun  N.  Y.  545.  Potter,  211  111.  1.38. 

23b'-McMannomy   v.    Walker,    63  24a — Keeley    Co.    v.    Hargreaves, 

111.  App.  278.  236  111.  332. 


124  EQUITY   PLEADINGS   AND   PRACTICE 

of  law,  wliicli  the  master  is  requested  to  find,  together 
witli  references  to  the  exhibits  or  pages  of  testimony, 
containing  evidence,  and  citing  the  authorities  bearing 
on  findings  of  law  requested.  This  accomplishes,  in  a 
formal  and  accurate  manner,  what  every  oral  argument 
before  a  master  does  in  an  informal  manner;  and  this 
procedure  insures  that  the  master  will  carefully  con- 
sider granting  or  refusing  each  finding  of  fact  or  law 
requested.  Such  requests  for  specific  findings  may  fur- 
nish a  guide  for  later  objections  to  the  master's  report. 

§  207.  Form  of  brief  before  master.  A  lawyer's  brief 
may  properly  contain  (1)  a  request  that  the  master 
make  certain  findings  of  fact,  stating  the  findings  sub- 
stantially as  alleged  in  the  pleading,  and  referring  to  the 
pages  of  the  evidence  for  and  against  each  of  such  find- 
ings; also  (2)  a  request  that  the  master  find  certain 
conclusions  of  law,  stating  them  exactly,  and  citing  au- 
thorities. 

§  208.  Objection  that  certain  findings  were  omitted. 
It  is  important  to  object  because  the  master  omitted 
certain  findings  which  might  be  in  objector's  favor.  The 
objector's  attention  is  often  absorbed  in  the  findings  that 
appear  in  the  report.  In  his  desire  to  change  these,  and 
to  have  them  agree  with  his  view,  he  is  likely  to  forget 
other  proper  findings,  on  issues  entirely  omitted  from 
the  report. 

§  209.  Method  of  objecting  to  master's  report.  An  ob- 
jection that  **the  findings  and  each  of  them  are  not  war- 
ranted by  the  evidence"  is  not  sufiSciently  specific.^^  It 
seems  in  Illinois,  objections  need  not  recite  or  point  out 
the  evidence  relied  upon,  but  only  need  point  out  dis- 
tinctly the  findings  and  conclusions   sought  to  be   re- 


25 — Waska    v.    Klaisner,    43    III. 
App.  611. 


MASTERS  IN   CHANCERY  ]^5 

Versed.^^  But  in  most  jurisdictions  an  objector  is  re- 
quired not  only  to  point  out  the  finding  objected  to,  but 
also  to  state  the  ground  of  the  objection.-^  It  is  also  good 
practice  for  the  objector  to  cite  the  pages  of  testimony, 
or  the  numbers  of  the  exhibits,  bearing  on  the  subject- 
matter  of  the  objection  or  exception,  grouping  together 
those  supporting  the  master's  finding,  and  then  those 
against  the  finding. 

§  210.  Exceptions  in  court  to  master's  report.  If, 
after  hearing  the  objections,  the  master  declines  to  mod- 
ify his  report,  the  parties  insisting  on  such  objections 
must  file  them  again  in  court,  under  the  name  "Excep- 
tions to  the  Master's  Report,"  because  the  master's 
findings  of  fact  are  undisturbed  in  the  absence  of  excep- 
tions so  filed.  If  objections  are  not  filed  before  the 
master,  exceptions  will  not  be  considered  by  the  court. 
Exceptions  should  point  out  specifically  the  particular 
error  upon  which  the  excepting  party  relies.  An  ex- 
ception calling  for  an  examination  of  evidence  must  refer 
to  and  point  out  the  evidence  relied  upon. 

§211.  Court's  ruling  upon  exceptions  should  be  spe- 
cific. A  decree  or  order  disposing  of  objections  to  the 
master's  report,  should  specify  what  exceptions  were 
sustained,  and  what  overruled,  so  that  an  appellate  court 
may  determine  the  basis  of  the  decree  entered.^^ 

§  212.  No  objections  or  exceptions  necessary  to  mas- 
ter's conclusions  of  law.  But  no  objections  are  necessary 
to  a  master's  findings  or  conclusions  of  law.  These  will 
be  heard  by  the  court  without  the  filing  of  objections  or 

26 — 'Hayes  v.  Hammond,  162  111.  ston,  13  Peters  359;  Emerson  v.  At- 

133;   McMannomy  v.  C.  D.  &  V.  E.  water,  12  Mich.  314;  Singer  v.  Steele, 

B.  Co.,  167  lU.  497.  125  111.  429;  Glos  v.  Hoban,  212  111. 

27—1  Barb.  551;   2  Dan.  957;    2  222;  Green  v.  Bishop,  1  CUfford  186. 

Bates  Fed.  Eq.  821;  Hurd  v.  Good-  28— Prendergast    v.    McNally,    76 

rich,  59  111.  455 ;  Harding  v.  Handy,  111.  App.  335. 
11   Wheaton   103;    Story  v.  Living- 


126  EQriTY    PLEADINGS    AND    PRACTICE 

exoei)tions.'^  It  serves  a  very  useful  purpose,  however, 
to  iile  before  the  master  formal  objections  to  his  con- 
clusions of  law,  citing  the  authorities.  It  may  induce 
him  to  conclude  differently. 

§  213.  Court  may  make  findings  additional  to  those  in 
master's  report.  Tlicre  is  no  rule  of  practice  which  for- 
bids the  court's  making  additional  findings  after  the 
filing  of  a  master's  report  if  the  evidence  accompanying 
the  report  warrants  and  supports  such  additional  find- 
ings. The  court  is  not  confined,  in  its  review  of  the 
e\'idence,  to  the  mere  question  of  ascertaining  whether 
the  exceptions  filed  to  the  report,  or  any  of  them,  should 
be  sustained.  When  the  master's  report  is  returned  into 
court,  the  party  objecting  to  it  may  file  exceptions,  upon 
the  hearing  of  which  the  whole  evidence  is  brought  for- 
ward and  passes  in  review  before  the  court. 

§  214.  Action  of  court  on  report.  The  report  of  a 
master  is  not  conclusive  upon  the  court,  even  as  to  the 
facts  found,  but  is  subject  to  review  by  the  court.  It  is 
generally  held  that  the  report  of  a  master  is  presump- 
tively correct,  and  that  his  conclusions  of  fact  will  not  be 
disturbed  unless  error  is  made  to  appear.  A  finding 
upon  conflicting  evidence  will  rarely  be  disturbed.  But 
in  the  federal  courts,  where  the  entire  cause  can  be 
referred  to  a  master  only  upon  consent  of  the  parties, 
and  where  therefore  some  references  are  by  consent,  and 
others  (where  particular  points  and  not  the  whole  case 
is  referred),  are  compelled  by  the  court,  a  distinction  is 
made.  In  references  by  consent,  the  report  is  presump- 
tively correct;  in  other  ordinary  references,  the  report 
is  advisorj^,  merely. 

§  215.  Confirmation  of  master's  report.  In  some  juris- 
dictions, by  court  rule  or  statute,  the  report  will  be 

29—2  Dan.  952. 


MASTERS  IN  CHANCERY  127 

deemed  confirmed  unless  exceptions  are  filed  within  a 
stated  time.^^  In  most  jurisdictions  an  express  order  is 
entered  confirming  the  master's  report.  Confirmation 
may  be  implied,  as  by  an  order  overruling  exceptions  to 
the  report,  or  by  the  entry  of  a  decree  based  upon  the 
report.  An  order  of  confirmation  is  interlocutory  and 
subject  to  modification ;  it  is  not  a  final  order  or  adjudica- 
tion.    The  confirmation  may  be  set  aside  for  cause. 

30— U.   S.   Eq.  Rule  66. 


CHAPTER  XXI 

Injunctions 

§  216.  Definition.  An  injunction  is  a  writ  granted  by 
a  court  comiuanding  an  act  to  be  done  which  the  court 
regards  as  essential  to  justice  (mandatory  injunction), 
or  forbidding  an  act  which  it  deems  against  justice  (pre- 
ventive injunction), 

§217.  Temporary  injunction.  Injunctions  are  (1) 
preliminary  or  interlocutory,  or  (2)  perpetual.  The  first 
are  granted  prior  to  the  final  hearing  and  continue  until 
answer  or  until  final  hearing,  or  until  further  order  of  the 
court.  They  do  not  determine  the  rights  of  the  parties. 
Their  purpose  is  to  hold  the  property  as  it  stands,  to  pre- 
vent further  injurj^,  until  the  right  itself  is  determined. 
If  a  preliminary  injunction  gives  practically  all  the  relief 
that  could  be  obtained  by  a  final  decree,  it  will  not  be 
issued,  nor  should  it  be  issued  where  the  injurious  acts 
have  been  completed,  nor  where  no  injury  will  occur. 
A  preliminary  injunction  is  also  called  a  temporary  in- 
junction, or  an  injunction  pendente  lite. 

§218.  Perpetual  injunction.  A  perpetual  injunc- 
tion is  one  which  perpetually  enjoins,  and  is  usually 
granted  in  a  final  decree  after  trial  of  the  entire  cause. 

§  219.  Restraining  orders  in  federal  courts.  When- 
ever notice  is  given  of  a  motion  for  an  injunction  out  of 
a  district  court  of  the  United  States,  the  court  or  judge 
thereof  may,  if  there  appear  to  be  danger  of  irreparable 
injury  from  delay,  grant  an  order  restraining  the  act 

128  J 


INJUNCTIONS  129 

sought  to  be  enjoined  until  the  decision  upon  the  motion. 
Such  order  may  be  granted  with  or  without  security,  in 
the  discretion  of  the  court  or  judge.^ 

§220.  Preliminary  injunctions  and  temporary  re- 
straining orders  in  the  federal  court.  In  the  federal 
court  no  preliminary  injunction  can  be  granted  without 
notice  to  the  opposite  party.  Nor  can  any  temporary 
restraining  order  be  granted  ^^ithout  notice  to  the  op- 
posite party,  unless  it  clearly  appears  from  specific  facts, 
shown  by  affidavit  or  by  verified  bill,  that  immediate  and 
irreparable  loss  or  damage  will  result  to  the  applicant 
before  the  matter  can  be  heard  on  notice.  In  case  a 
temporary  restraining  order  is  granted  without  notice, 
the  matter  must  be  made  returnable  at  the  earliest  pos- 
sible time  not  later  than  ten  days  from  date  of  the  order, 
and  when  the  matter  comes  up  for  hearing  the  party 
who  obtained  the  restraining  order  must  proceed  with 
his  application  for  a  preliminary  injunction  or  the  re- 
straining order  will  be  dissolved.  Upon  two  days'  notice 
the  opposite  party  may  move  the  dissolution  or  modifi- 
cation of  the  restraining  order.^ 

In  most  jurisdictions,  no  injunction  will  be  granted 
without  previous  notice  of  the  time  and  place  of  the 
application  having  been  given  to  the  defendants  who  can 
conveniently  be  served;  unless  it  appears  from  the  bill 
or  affidavit  accompanying  the  same  that  the  rights  of  the 
complainant  will  be  unduly  prejudiced  if  the  injunction 
is  not  issued  immediately  or  without  such  notice;  and 
before  an  injunction  shall  issue,  complainant  as  a  rule,  is 
required  to  give  a  bond  for  the  protection  of  those  en- 
joined. 

§  221.  Bill  must  show  an  existing  right,  and  its  im- 
pending violation.  The  bill  for  injunction  must  show 
that  the  acts  sought  to  be  prevented  wall  be  a  substantial 

1— U.  S.  Judicial  Code,  Act  Mar.  2— U.  S.  Eule  73. 

3,  1911. 

E.  P.— 9 


180  EQUITY    PLE.\DINGS    AND    PRACTICE 

\iolation  of  complainant's  clear  riglit  and  not  a  mere 
inconvenience  to  complainant's  riglit.  The  right  as- 
serted by  complainant  must  be  free  from  doubt  where  the 
preliminary  injunction  will  do  more  than  merely  main- 
tain the  status  quo,  or  where  the  injunction  will  cause 
greater  loss  and  inconvenience  than  will  be  suffered  by 
complainant  if  no  injunction  be  granted;  and  for  a  pre- 
liminary injunction,  the  bill  must  show  that  an  irrepar- 
able injury  is  impending  and  will  occur  before  the  final 
hearing  can  be  had. 

A  chancery  decree  acts  in  personam,  and  a  court  hav- 
ing jurisdiction  of  the  parties  may  grant  and  enforce  an 
injunction,  although  the  subject-matter  affected  by  it  is 
beyond  the  territorial  jurisdiction  of  the  court.^ 

3 — Alexander    v.    ToUeston    Club, 
110  111.  65. 


CHAPTER  XXII 

Receivers 

§  222.  Definition.  A  receiver  is  an  officer  of  the  court 
through  whom  the  court  takes  possession  of  property 
which  is  the  subject-matter  of  a  pending  ^  suit,  preserves 
it  from  waste,  destruction  or  loss,  manages  the  same, 
secures  and  collects  the  proceeds,  and  ultimately  dis- 
poses of  the  property  and  proceeds  according  to  the 
rights  of  those  entitled  thereto,  whether  they  are  regular 
parties  in  the  suit,  or  come  in  during  the  course  of  the 
proceedings  and  establish  their  rights. 

§  223.  Situs  of  property.  A  receiver  may  be  appointed 
for  all  property  within  the  jurisdiction  of  the  court, 
whether  or  not  the  owner  is  within  such  jurisdiction;^ 
and  a  receiver  may  be  appointed  for  the  express  pur- 
pose of  preventing  the  removal  beyond  the  jurisdiction 
of  property  within  the  jurisdiction  of  the  court.^ 

§  224.  Object  and  grounds  for  appointment.  The  bill 
should  show  the  need  for  a  receiver  to  preserve  the  prop- 
erty which  is  the  subject-matter  of  the  suit,  until  a  judi- 
cial determination  of  the  rights  of  the  parties  thereto.^ 
The  principal  ground  is  danger  of  loss  or  injury  to  such 
property  before  the  court  can  decree  finally  on  the  merits. 
If  there  is  no  showing  of  probable  danger  of  loss  or  in- 
jury to  the  property  involved,  no  appointment  will  be 

1 — ^Baker  v.  Adm.  of  Backus,  32  3 — Loaiza  v.   Superior   C.   T.,   85 

III.  79.  Cal.  11. 

2 — Hutchinson  v,  American  Palace  4 — Davis  v.  Gray,  16  Wall.  203. 
Car.  Co.,  104  Fed.  Eep.  182. 

131 


132  EQITITY    PLEADINGS    AND    PRACTICE 

nuule.''  The  court  will  not  appoint  a  receiver  unless  it 
is  shown  that  the  possessor  is  insolvent,  or  at  least  that 
tliere  is  good  reason  to  doubt  his  ability  to  satisfy  a 
judgment  for  damages  for  loss  or  injury  to  the  prop- 
erty ; "  but  insolvency  is  not  sufficient  as  a  sole  ground 
for  the  appointment  of  a  receiver  '^  except  in  foreclosure 
cases.^  Where  insolvency  is  likely  to  result  in  a  loss  of 
the  fund  or  property  in  controversy,  a  receiver  may  be 
appointed  on  the  ground  of  insolvency.*^ 

It  is  a  high  exercise  of  power  for  a  court  of  chancery  to 
place  property  in  the  custody  of  a  third  person,  and  a 
court  will  do  so  only  when  it  is  made  to  appear  that  the 
property  will  probably  be  wasted,  secreted  or  misap- 
plied.^« 

§  225.  Receiver  will  not  be  appointed  where  there  is 
a  remedy  at  law.  The  appointment  of  a  receiver  is  a 
remedy  of  equitable  origin  and  jurisdiction,  and  to  main- 
tain it  there  must  exist  no  remedy  at  law.^^  A  receiver 
will  not  be  appointed  when  the  suit  is  upon  a  mere  ques- 
tion of  legal  right,^2  or  when  the  party  can  assert  his 
right  by  a  direct  action  at  law.  A  receiver  will  not  in 
general  be  appointed  where  the  creditor  may  have  execu- 
tion and  recover  his  debt  by  sale  of  the  debtor's  prop- 
erty. ^^ 

Plaintiff  to  obtain  a  receiver  must  show  he  has  a  clear 
right  to  the  property,  or  that  he  has  some  lien  upon  it, 


5 — Beecher  v.  Bininger,  7  Blatehf.  9 — Eydor    v.    Bateman,    93    Fed. 

U.  S.  170;  Bush  v.  Mattox,  110  Ga.  Eep.  16. 

472.  10— Crombie   v.    Order    of    Solan, 

6 — Haines  v.  Carpenter,  1  Woods  157  Pa.  St.  588. 

U.  S.  266.  11— Wauneker    v.    Hitchcock,    38 

7— Onondaga   Trust   Co.   v.   Spar-  Fed.  Eep.  383. 

tansburg  Water  Wks.  Co.,   91  Fed.  12— Eollins    v.    Henry,    77    N.    0. 

324.  469. 

S-Hughes    V.    Hatchett,    55    Ala.  ^  ^l^f^''^^''  ^-  ^°°'«'  ^  ^*^^-  N' 

634.  ^-  ^'^*' 


RECEIVERS  133 

or  that  the  property  constitutes  a  special  fund  for  the 
satisfaction  of  his  claim. 

§226.  Receiver's  control  over  property.  A  receiver 
is  entitled  to  take  possession  and  control  of  property 
or  funds  involved,  and  to  manage  and  dispose  of  the  same 
under  the  directions  of  the  appointing  court.  He  can- 
not transfer  the  control  and  management  to  another.^^ 
The  mere  order  of  appointment  does  not  constitute  ac- 
tual possession  of  the  property;  ^^  actual  possession  must 
be  taken  by  the  receiver.  Property  in  the  receiver's 
hands  is  exempt  from  judicial  process  as  a  rule,  except 
as  permission  can  be  given  by  the  appointing  court.^^ 

A  receiver  has  no  authority  in  any  state  or  country 
other  than  that  in  which  he  was  appointed,  and  his  au- 
thority will  not  be  recognized  elsewhere."  He  is  in- 
competent to  sue  in  a  foreign  jurisdiction,  just  as  an 
executor  or  administrator  appointed  in  one  state  has  no 
authority  to  bring  suit  in  any  other.  Some  cases,  how- 
ever, have  held  to  the  contrary.^  ^ 

§227.  Bond  instead  of  receiver.  Where  the  person 
in  possession  of  property  or  receiving  rents  from  prop- 
erty offers  to  execute  a  bond  to  secure  the  person  seeking 
a  receiver  from  any  loss  pending  the  suit,  a  receiver  will 
not  as  a  rule  be  appointed.  ^^ 

§  228.  Bonds  to  be  furnished.  In  most  jurisdictions 
the  party  applying  for  the  receiver  must  furnish  a  bond 
to  protect  the  adverse  party  against  damages  which  may 
result  from  the  appointment  and  acts  of  the  receiver,  in 
the  event  that  the  appointment  is  revoked.  The  receiver 
must  also  furnish  a  bond  for  the  faithful  performance  of 
his  duties. 

14— Shadewald  v.  White,  74  Minn,  17— Booth  v,  Clark,  17  How.  U.  S. 

208.  322,  330. 

15 — Woodland  Bank  v.  Heron,  120  18 — High  on  Eeceivers,  Sec.   241. 

Cal.  614.  19 — Devereaux  v.  Fleming,  47  Fed. 

16— Jackson  v.  Lahee,  114  111.  287.  Eep.  177. 


134  EQUITY    PLEADINGS    AND    PRACTICE 

§  229.  Receivers  of  corporations.  A  court,  as  a  rule, 
will  not  by  a  receiver  take  the  control  and  management 
of  the  corporation  out  of  the  hands  of  its  officers  and 
directors ;  -"^  but  if  a  corporation  is  insolvent  and  has 
.suspended  operations,  a  receiver  may  be  appointed  to 
protect  its  creditors  and  stockholders.^^  Also,  when  a 
corporation  is  dissolved  and  has  no  place  of  business  and 
no  officers  to  attend  to  its  business,  a  receiver  may  be 
appointed  to  preserve  the  assets.^^  By  the  appointment 
of  a  receiver  the  corporation  is  deprived  of  the  right  to 
exercise  its  powers  only  to  the  extent  that  the  decree  of 
the  court  transfers  such  powers  to  the  receiver. 

§  230.  Obtain  leave  to  sue  receiver.  The  rule  is  that 
in  the  absence  of  a  statute  to  the  contrary  no  suit  can  be 
brought  against  a  receiver  without  permission  from  the 
appointing  court.^^  It  rests  in  the  discretion  of  the  court 
to  allow  a  party  to  bring  an  independent  action  against 
the  receiver,  or  to  compel  him  to  proceed  in  the  suit 
in  which  the  receiver  was  appointed.^^  Leave  to  sue 
a  receiver  is  granted  as  a  matter  of  course,  unless  it  is 
clear  that  there  is  no  foundation  to  the  claim.  Failure 
to  obtain  leave  of  court  before  suing  a  receiver  is  merely 
an  irregularity,  which,  though  punishable  as  a  contempt, 
may  be  cured  or  waived  at  any  state  of  the  proceedings.^^ 
The  plaintiff  in  such  action  only  renders  himself  liable 
to  have  his  proceedings  stopped  by  the  appointing  court 
on  the  application  of  the  receiver,  by  action  against  the 
plaintiff  personally .^^ 

Inasmuch  as  the  receiver  is  an  officer  of  the  court,  any 

20 — Ranger    v.    Champion    Cotton  24 — Mechanic's     Nat.     Bank     v. 

Press  Co.,  52  Fed.  Rep.  609.  Landauer,  68  Wis.  44. 

21 — McGeorge  v.  Big  Stone  Gap  25 — De  Groot  v.  Jay,  30  Barbour 

Imp.  Co.,  57  Fed.  262.  N.  Y.  483, 

22 — Midland  Co.  v.  Anderson,  63  26 — Lyman  v.  Central  Vermont  R. 

III.  App.  51.  Co.,  59  Vt.   167. 

23— Barton  v.  Barbour,  104  U.  S. 
126. 


RECEIVERS  135 

unlawful  interference  with  liim  in  the  performance  of 
his  duties,  or  in  his  possession  of  the  property,  is  deemed 
a  contempt  of  the  court,  and  will  be  punished  as  such.^'^ 

27 — In  re  Higgins,  27  Fed.  Eep. 
443. 


CHAPTER  XXin 
Forms 

THE  NINE  USUAL  PARTS  OF  A  BILL. 

1.  I.    The  Address. 

(In  the  District  Court  of  the  United  States). 
To  the  Judges  of  the  District  Court  of  the  United  States  for  the 

District  of 

(In  States.) 

To  the  Judges  of  the  Court  of  County,  in 

Chancery  sitting: 

2.  II.     The  Introduction. 

(By  a  complainant  under  no  disabilities.) 

Introduction. 

A.  B.,  a  citizen  of  the  state  of ,  residing  in 

county  in  said  state  brings  this  bill  against  C.  D.,  a  citizen  of  the 

state  of ,  residing  in county  in  said  state,  and 

E.  F.,  a  citizen  of  the  state  of ,  residing  in   

county,  in  said  state ;  and  complains  and  avers  as  follows ; 

Note.  From  the  fact  that  the  courts  of  the  United  States  are 
of  limited  jurisdiction  and  suits  must  be  brought  in  the  dis- 
trict where  the  defendant  resides,  and  from  the  fact  that  in 
most  jurisdictions  the  defendants  must  be  sued  in  the  county 
where  they  reside,  it  follows  that  the  existence  of  jurisdiction 
should  be  made  plain  upon  the  face  of  the  record  in  each 
case,  or  the  bill  will  be  demurrable,  or  may  be  dismissed 
by  the  court  on  its  own  motion.  This  can  be  accomplished  by 
stating  the  citizenship,  naming  the  county  of  which  the  parties 
are  residents. 

(By  an  infant  by  his  father  and  next  friend.) 

Your  orator,  A.  B.,  of  the  county  of ,  an  infant,  by 

E.  B.,  of  the  same  county,  his  father  and  next  friend,  respect- 
fully represents  unto  your  honor  that,  etc. 
(By  a  corporation.) 

Your  orator,  the Company,  a  corporation  duly  estab- 
lished by  the  laws  of  the  State  of ,  and  duly  licensed 

to  do  business  in    ,  respectfully  represents  unto  your 

honor  that,  etc. 

137 


138  EQUITY   PLEADING   AND   PRACTICE  I 

3.  III.    The  Premises  or  Stating  Part. 

That,  etc.  (Here  insert  all  the  facts  constituting  complainants' 
rijjhts,  and  all  the  facts  constituting  the  defendants'  duties  and 
violation  of  the  complainants'  rights.  (See  text  ante  "stating 
port  of  bill"). 

4.  IV.    The  Confederating  Part. 

(This  part  should  be  omitted.) 

That  the  said  C.  D.,  combined  and  confederated  with  E.  F. 
and  G.  H.,  and  with  divers  other  persons,  at  present  unlinown 
to  your  orator,  whose  names,  when  discovered,  your  orator  prays 
he  may  be  at  liberty  to  insert  herein  with  apt  words  to  charge 
them  as  parties  defendant  hereto; 

5.  V.     Charging  Part. 

(This  part  of  the  bill  may  also  be  omitted,  unless  pleader  de- 
sires to  anticipate  the  defenses  and  to  meet  them  with  counter- 
charges or  unless  the  pleader  desires  to  allege  part  of  his  cause 
of  action  again,  in  the  form  of  evidential  facts  which  he  thinks 
the  answer  cannot  evade.) 

That  the  defendant  sometimes  alleges  and  pretends  (stating 
the  supposed  ground  of  the  defense),  and  at  other  times  he  al- 
leges and  pretends,  etc. ;  whereas,  your  orator  charges  the  con- 
trary thereof  to  be  the  truth,  and  that  (stating  the  special  matter 
with  which  the  plaintiff  meets  the  defendant's  supposed  case). 

And  more  particularly  complainant  charges,  that  on  or  about 
Sept.  1,  1899,  defendant  James  Brown  in  Chicago  mad£,  signed,- 
sealed  and  delivered  his  certain  writing  in  words  and  figures  sub- 
stantially as  follows: 

6.  VI.    Jurisdictional  Clause. 

(This  clause  should  be  omitted,  as  unnecessary.) 
Your  orator  further  avers  that  the  said  rights  of  your  orator 
are  remediless,  according  to  the  strict  rules  of  the  common  law, 
and  can  only  have  relief  in  a  court  of  equity,  where  matters  of 
this  nature  are  properly  cognizable  and  relievable. 

or, 
Forasmuch  as  your  orator  is  without  remedy  except  in  a  court 

of  equity  and,  and  i 

I 

I 

7.  VII.     Interrogating  Part. 

(General  interrogatory.)  To  the  end,  therefore,  (or,  your 
orator  prays)  that  the  defendants  hereinafter  named  may  make 
full,  true,  direct  and  perfect  answers  (but  not  under  oath, 
answer  under  oath  being  hereby  waived)  to  all  the  matters  herein 


,  "  FORMS   OF   BILL  139 

stated  and  charged,  as  fully  and  particularly  as  if  the  same  were 
hereinafter  repeated,  and  they  thereunto  distinctly  interrogated ; 
and  that  not  only  as  to  the  best  of  their  respective  knowledge 
and  remembrance,  but  also  according  to  the  best  of  their  respec- 
tive information  and  belief;  (Special  interrogatories)  and  more 
especially,  that  they  may  answer  and  set  forth. 

1.  Whether,  etc.  (Here  follow  interrogatories  to  be  answered 
by  the  defendant.) 

2.  Whether,  etc. 

8.  VIII.     Prayer  for  Relief. 

And  (or,  your  orator  prays)  that  upon  the  final  hearing  of 
this  cause  it  be  ordered  and  decreed,  among  other  things  that 
(here  state  the  particular  relief  asked)  ; 

And  that  your  orator  may  have  such  other  and  further  relief 
in  the  premises  as  may  be  just  and  equitable. 

9.  IX.    Prayer  for  Process. 

(prayer  for  summons.) 

May  it  please  your  honor  to  grant  the  writ  of  summons  in 

chancery,  directed  to  the  sheriff  of  the  said  county  of , 

commanding  him  that  he  summon  the  defendant,  C.  D.,  to  ap- 
pear before  the  said  court,  on  the  first  day  of  the  next 

term  thereof,  to  be  held  at  the  court  house  in ,  in  the 

county  of ,  aforesaid,  and  then  and  there  to  answer  this 

bill,  etc. 

10.  (prayer  for  subpoena  in  u.  s.  court.)  i 

May  it  please  your  honor  to  grant  unto  your  orator  the  writ  of 
subpoena  of  the  United  States  of  America,  issued  out  of  and  under 
the  seal  of  this  honorable  court,  to  be  directed  to  the  said  C.  D., 
and  thereby  commanding  them,  and  every  one  of  them,  at  a  cer- 
tain day  and  under  a  certain  penalty,  therein  to  be  specified, 
personally  to  )>e  and  appear  before  this  honorable  court,  and 
then  and  there  to  answer  all  and  singular  the  premises  (but  not 
under  oath  except  in  response  to  the  sjjecial  interrogatories  above, 
otherwise  answer  under  oath  is  hereby  expressly  waived)  and  to 
stand  to,  perform  and  abide  such  order  and  decree  therein,  as  to 
your  honor  shall  seem  meet. 


In  the  older  forms  the  jurisdictional,  interrogatory,  relief  and 
process  clauses,  form  one  grammatical  sentence :    Thus ; 

Forasmuch  as  your  orator  is  without  relief  except  in  a  court 
of  equity,  and  i 


140  EQUITY    PLEADING   AND   PRACTICE 

To  the  end  that  said  defendant  may  answer  this  bill,  and 

That  the  court  may  decree  that  said  defendant,  among  other 
things,  come  to  a  just  account,  etc.,  and  that  your  orator  may 
have" such  other  and  further  relief  as  may  be  equitable; 

I^Iay  it  please  your  honor  to  grant  unto  your  orator  the  writ 
of  subpcena,  etc. 

Thus,  the  interrogatory  part  is  as  much  entitled  to  be  called  a 
prayer  for  answer  as  the  relief  clause  is  to  be  called  a  prayer  for 
relief.     They  recite  the  object  or  purpose  for  asking  process. 

In  modem  bills,  the  jurisdiction  clause  is  omitted  and  answer 
and  relief  are  each  directly  prayed  for.     Thus; 

Your  orator  therefore  prays  that  said  defendant  answer  this 
bill,  etc. 

And  your  orator  prays  that  said  defendants  among  other 
things,  come  to  a  just  and  true  account  with  your  orator,  etc.. ; 
and  that  your  orator  may  have  such  other  and  further  relief  as 
may  be  equitable. 

11.  Prayer  for  Injunction. 

(After  the  prayer  for  summons  or  subpoena  as  in  the  two  last 
forms,  add  the  following:) 

And  may  it  please  your  honor  to  grant  unto  yonr  orator  the 
people's  writ  of  injunction,  to  be  directed  to  the  said  C.  D.,  re- 
straining him.  his  employes  and  agents,  etc.  (here  insert  the  mat- 
ter sought  to  be  enjoined),  until  the  further  order  of  said  court. 

12.  Prayer  in  Bill  for  Writ  of  Ne  Exeat. 

May  it  please  the  court  to  grant  unto  your  orator  the  writ  of 
ne  exeat,  issuing  out  of  and  under  the  seal  of  this  honorable  court, 
to  restrain  the  said  defendant,  C.  D.,  from  departing  out  of  the 
jurisdiction  of  this  court. 

13.  Chancery  Summons. 

State  of ,     }  ^^ 

County,     \ 


The  People  of  the  State  of  To  the  Sheriff  of  said 

County,  Greeting: 

We  command  you  that  you  summon  if  he  shall  be 

found  in  your  county,  personally  to  be  and  appear  before  the 

court  of  Cook  county,  on  the  first  day  of  the  term 

thereof,  to  be  held  at  the  court  house,  in  said  county,  on  the  first 

i\Ionday  of ,  next  to  answer  unto in 

certain Bill  of  Complaint filed  in  said  court, 

on  the  chancery  side  thereof. 

And  have  you  then  and  there  this  writ,  with  an  endorsement 
thereon  in  what  manner  you  shall  have  executed  the  same. 


FORMS   OF   BILL  141 

Witness, ,  clerk  of  our  said  court,  and  the  seal  thereof, 

at ,  in  said  county,  this day  of ,  A.  D. 

19... 


Clerk. 

14.  Bill  op  Complaint  (Short  Form), 

In  the  United  States  District  Court  in  and  for  the 

district  of ,  term,  19.  .. 

To  the  Judges  of  the  District  Court  of  the  United  States  for  the 

district  of   : 

A.  B,,  a  citizen  of  the  state  of ,  residing  in 

county  in  said  state,  brings  this  his  bill  against  C.  D.,  a  citizen 

of  the  state  of ,  residing  in county  in  the  state 

of ,  and  E.  F.,  a  citizen  of  the  state  of ,  residing 

ill  county  in  the  state  of ,  and  G.  H.  a  male 

infant  under  21  years  of  age,  residing  in county  in 

the  state  of    ; 

And  thereupon  your  orator  complains  and  says  that,  etc. 
(Here  state  briefly  the  ground  on  which  the  court's  jurisdiction 
depends.) 

And  your  orator  says  (here  i^isert  statement  of  the  ultimate 
facts  upon  which  complainant  asks  relief.) 

And  your  orator  says  (here  state  luhy  those  who  appear  to 
he  proper  ijarties,  are  not  named  as  such;  as  absence  from  the 
jurisdiction,  etc.) 

To  the  end  that  your  orator  may  obtain  the  relief  to  which  he 
is  entitled  in  the  premises,  he  now  prays  the  court  to  grant  him 
due  process  by  subpoena  directed  to  said  C.  D.  and  E.  F., 
defendants  hereinbefore  named,  requiring  and  commanding  each 
of  them  to  appear  herein  and  answer  under  oath  (or,  but  not 
under  oath,  the  same  being  expressly  waived)  the  several  alle- 
gations in  this  3^our  orator's  bill  contained. 

And  3^our  orator  further  prays  that  upon  the  final  hearing  it 
be  ordered  and  decreed  that  (here  insert  the  special  relief 
so^ight  pending  the  suit,  if  any;  in  which  case  the  bill  must  be 
sworn  to). 

And  further  prays  for  such  other  and  further  relief  as  may 
be  just  and  equitable. 

14A.  Bill  to  Foreclose  Trust  Deed. 

To  the  Honorable   ,  Judge  of  the   

Court  of  ,  State  of  

Humbly  Complaining  unto  said  Court,  Your  Orator, 

of  the  City  of ,  in County,  State  of , 

brings  this  bill  against ,  of ,  in  the  County  qf 

,  and  State  of ,  respectfully  shows  that  on  the 


142  EQUITY   PLEADING   AND   PRACTICE 

day  of ,  A.  D , of  ........ , 

in  the  Couxity  of  ,  and  State  of  ,  being  in- 
debted ill  the  sum  of Dollars,  made,  executed  and  de- 
livered his  certain  promissory  note  of  that  date,  and 

thereby  promised  to  pay  to  the  order  of ,  the  said  sum 

of  money  in years  after  the  date  thereof,  with  interest 

thereon  at  the  rate  of per  centum  per  annum  until  ma- 

t-urit}',  payable  semi-annually,  for  which  said  interest,  

interest  notes  were  given,  and  all  of  said  notes  draw  interest 
after  their  maturity  at  the  rate  of  seven  per  centum  per  annum. 
Copies  of  which  said  notes  remaining  unpaid  are  annexed  as  ex- 
hibit A. 

And  Your  Orator. .  further  shows  unto  said  Court,  that  to 
secure  the   payment  of   the   notes   above   mentioned,   the   said 

,  on  the day  of ,  A.  D ,  by 

their  deed  of  trust  of  that  date,  conveyed  to  ,  in  fee 

simple,  the  follo^^ang  described  real  estate,  with  the  appur- 
tenances   thereunto    belonging,    situated    in    the    County    of 

,  and  State  of ,  to- wit :     ,  in  trust,  for 

the  purpose  of  securing  the  payment  of  the  said  notes ;  which  said 

deed  of  trust  was,  on  the    day  of    ,  A.  D. 

,  duly  acknowledged  and  delivered,  and  afterwards,  on 

the   day  of  ,  A.  D ,  duly  filed  for 

record  in  the  Recorder's  Office  in  and  for  said County, 

and  recorded  as  Document  No ,  in  Book  of 

Records,  at  page ,  a  copy  which  of  which  trust  deed  is 

hereto  annexed  as  exhibit  B. 

And   Your    Orator. .    further   shows   unto   said    Court,   that 

is  now  the  legal  holder  and  owner  of  said  notes  and 

trust  deed. 

And   Your   Orator.  .    further   shows   unto   said    Court,   that 

is  the  trustee  named  in  said  trust  deed,  and  as  such  is 

a  party  hereto,  to  the  end  that  the  lien  of  said  trust  deed  may  be 
fully  foreclosed,  and  that  all  of  the  terms  and  provisions  of  said 
trust  deed  may  be  enforced,  and  all  of  the  debts  secured  to  be 
paid  thereby,  may  be  fully  paid  out  of  the  proceeds  of  the  sale  of 
said  real  estate,  and  the  rent,  revenue  and  income  thereof. 

And  Your  Orator. .  further  shows  unto  said  Court,  that  it  is 
provided  in  said  trust  deed,  that  if  default  should  be  made  in 
the  payment  of  the  said  promissory  notes,  or  either  of  them,  or 
the  interest  thereon,  or  any  part  thereof,  or  in  case  of  v/aste  or 
non-payment  of  taxes  or  assessments,  or  neglect  to  procure  or 
renew  insurance,  or  in  ease  of  the  breach  of  any  of  the  covenants 
or  agreements  therein  contained,  then,  and  in  such  case,  the 
whole  of  such  principal  and  interest  secured  by  the  said  promis- 
soiy  notes,  should  thereupon,  at  the  option  of  the  legal  holder 
thereof,  become  immediately  due  and  payable;  and  said  trust 
deed  might  then  be  immediately  foreclosed  to  pay  the  same,  and 


FORMS   OF   BILL  143 

that  the  said  trustee  might  then  enter  upon  said  real  estate  and 
collect  the  rents,  issues  and  profits  arising  therefrom,  and  apply 
them  as  stated  in  said  trust  deed. 

And  Your  Orator.  .  further  shows  that  sundry  taxes  and  as- 
sessments levied  and  assessed  upon  said  real  estate,  have  become 
due  and  remain  unpaid,  as  follows : 

And  Your  Orator.  .  further  shows  that  said  real  estate  was 
sold  on  account  of  the  non-payment  of  taxes  and  assessments, 
which  sales  were  made  at  the  dates  and  for  the  amounts  as  fol- 
lows : 

And  Your  Orator. .  further  shows  that  said has  paid 

the  sums  of  money  at  the  dates  mentioned,  as  follows,  in  and 
about  relieving  said  real  estate  from  sundry  liens  thereon  for 
taxes  and  assessments,  to-wit : 

And  Your  Orator.  .  further  shows  that  default  was  made  by 
the  said  grantors  in  said  trust  deed  in  the  matter  of  insurance, 

specified  in  said  trust  deed,  and  said has  paid  the  sums 

of  money,  and  at  the  dates  hereinafter  stated,  for  the  purpose 
of  and  in  and  about  providing  insurance  as  is  required  in  and  by 
said  trust  deed,  to-wit : 

And  Your  Orator. .  further  shows  that  items  of  expense  for 
taxes,  assessments  and  insurance,  and  other  matters,  which  by 
the  terms  of  said  trust  deed  should  be  paid,  are  liable  to  accrue 
and  should  be  paid  during  the  pendency  of  this  cause,  and  that 
such  items  of  expense,  if  any  there  shall  be,  and  which  shall  be 
paid  by  your  Orator.  .  during  the  pendency  of  this  cause,  should 
be  included  in  the  decree  to  be  rendered  in  this  cause. 

And  Your  Orator.  .   further  shows  that   are  in  the 

occupancy  of  said  real  estate,  or  some  part  thereof,  as  tenants  of 
the  grantors  in  said  trust  deed,  and  your  Orator,  .avers  that  such 
persons  have  no  right,  title  or  interest  in  said  real  estate  which  is 
not  subject  to  the  prior  and  superior  lien  of  said  trust  deed. 

And  Your  Orator.  .  further  shows  that are  or  claim 

to  be  judgment  creditors  of  said  grantors,  or  one  of  them,  men- 
tioned in  said  trust  deed,  and  your  Orator.  .  avers  that  the 
claims,  demands  and  judgments  of  all  of  said  persons  are  inferior 
to  and  are  subject  to  the  lien  of  said  trust  deed  sought  to  be  fore- 
closed herein. 

And  Your  Orator.  .  further  shows  that are  or  claim 

to  be  interested  in  said  real  estate  as  the  owners  or  holders  of 
liens  thereon,  secured  by  encumbrances  thereon,  or  otherwise, 
and  your  Orator.  .  avers  that  all  such  liens,  if  any  there  be,  are 
inferior  to  and  are  subject  to  the  lien  of  the  trust  deed  sought  to 
be  foreclosed  herein. 

And  Your  Orator.  .  further  shows  that  the  whole  of  the  princi- 
pal and  interest  on  the  said  notes  has  become  due  and  payable  by 
reason  of  

And  that  the  sum  of Dollars,  with  interest  thereon 


144  EQUITY  PLEADING   AND   PRACTICE 

at  the  rate  of per  centum  per  annum  from  the 

jjiv  of A.  D ,  is  now  due  and  unpaid  to  said 

.  .*. on  the  said  principal  note. 

And  that  the  sum  of Dollars,  and  the  interest  thereon 

at  the  rate  of per  centum  per  annum,  from is 

due  and  unpaid  to  said for  said  interest  note,  due  as 

aforesaid,  on  the day  of ,  A.  D 

And  that  the  sum  of Dollars,  with  interest  thereon 

at  the  rate  of per  centum  per  annum  from  . ., 

is  due  and  unpaid  to  said for  money  paid  to  relieve  said 

real  estate  from  the  lien  of  the  taxes  and  assessments  thereon, 
and  other  items  of  expense  and  interest  thereon,  as  follows,  to- 
wit : 

That  under  and  pursuant  to  the  terms  and  agreements  of  said 

trust  deed,  your  Orator. .,  said ,  is  entitled  to  have  the 

fees  of  the  complainant's  solicitors  herein  paid  out  of  the  pro- 
ceeds of  the  sale  of  said  real  estate,  and  under  and  by  virtue  of 

said  trust  deed  there  is  due  to  your  Orator . . ,  said ,  the 

sum  of Dollars  for  attorney's  and  solicitor's  fees  for 

services  in  this  cause. 

That  under  and  pursuant  to  the  terms  and  provisions  of  said 

trust  deed,  your  Orator.  .   has  expended  the  sum  of   

Dollars  in  and  about  procuring  a  continuation  of  the  abstract 
of  the  title  to  said  real  estate,  for  use  in  these  proceedings,  which 
last  mentioned  sum  of  money  your  Orator.  .  avers  should  be  al- 
lowed as  part  and  parcel  of  the  debt  secured  to  be  paid  by  said 
trust  deed,  and  be  included  in  the  amount  of  the  decree  to  be 
rendered  in  this  cause. 

And  Your  Orator .  .  further  represents  and  charges,  that  the 
said  real  estate  described  in  said  trust  deed  is  meager  and  scant 

security  for  the  payment  of  the  sum  of   Dollars  now 

due,  as  aforesaid,  to  your  Orator .  . ,  said ,  under  and  by 

virtue  of  said  notes  and  trust  deed. 

Your  Orator .  . ,  therefore,  asks  the  aid  of  said  Court  in  the 

premises,  and  makes  the  said  defendants  to  this  bill 

of  complaint,  and  to  the  end  that  they  may  be  required  to  an- 
swer this,  your  Orator.  .  bill  of  complaint,  according  to  the  rules 
and  practice  of  said  Court,  without  oath,  their  and  each  of  their 
answers  on  oath  being  hereby  waived;  that  a  receiver  may  be 
appointed  upon  the  filing  of  this  bill,  as  is  stated  in  said  trust 
deed;  that  an  account  may  be  taken  in  this  behalf  by  or  under 

the  direction  of  said  Court ;  that  the  said  defendant  , 

may  be  decreed  to  pay  your  Orator.  .,  said ,  whatever 

sum  shall  appear  to  be  due  to  him  upon  the  taking  of  such  ac- 
count, together  with  said  solicitor's  fees  and  all  the  costs  of  this 
proceeding,  by  a  short  day,  to  be  fixed  by  the  said  Court ;  that  in 
default  of  such  payment,  the  said  real  estate  may  be  sold,  as  may 
be  directed  by  the  said  Court,  to  satisfy  the  amount  due  for  prin- 


FORMS   OF   BELL  145 

cipal  and  interest  on  the  said  notes  and  for  the  said  other  items 
due  under  said  trust  deed,  and  for  said  solicitor's  fees,  and  all 
the  said  cost ;  that  in  case  of  such  sale,  and  in  failure  to  redeem 
therefrom,  pursuant  to  the  statute,  the  defendants,  and  all  per- 
sons claiming  through  or  under  them  subsequent  to  the  com- 
mencement of  this  suit,  may  be  forever  barred  and  foreclosed  of 
all  right  and  equity  of  redemption  in  the  said  real  estate ;  that 
your  Orator may  have  execution  against  the  said  de- 
fendant   for  any  balance  that  shall  remain  due  to  your 

said  Orator.  .  of  the  principal  and  interest  of  said  notes,  and  un- 
der said  trust  deed,  if  the  sale  of  said  real  estate  fail  to  produce 
sufficient  to  pay  the  whole  of  said  debts,  solicitor's  fees  and  costs, 
and  that  your  Orator.  .  may  have  such  other  and  further  relief 
as  the  nature  of  his  case  may  require,  and  as  to  said  Court  shall 
seem  agreeable  to  equity  and  good  conscience. 

May  it  Please  Said  Court  to  grant  unto  your  Orator  the  writ 
of  summons  in  chancery,  issuing  out  of  and  under  the  seal  of  said 

Court,  directed  to  the of  the  said of , 

commanding  him  that  he  summon  the  said  defendants 

to  appear  before  the  said  Court,  on  the  first  day  of  the  next  term 

thereof,   to   be  held  at  the   Court   House   in   the    of 

aforesaid,  then  and  there  to  answer  all  and  singular 

the  premises,  and  to  stand  to  and  abide  by  and  perform  such  or- 
der and  decree  therein  as  shall  seem  agreeable  to  equity  and  good 
conscience. 

And  Your  Orator. .  will  ever  pray,  etc. 


Solicitors  for  Complainant  .... 

15.  Praecipe  for  Process. 

(Title  of  court  and  cause.) 
To  clerk  of  said  court : 

In  above  cause,  being  a  bill  filed  for  (here  state  briefly  pur- 
pose of  hill,  as  for  foreclosure  of  mortgage,  or  to  set  aside  con- 
veyance of  realty),  please  issue  a  subpoena  to  C.  D.  and  E.  F., 
defendants. 

Solicitor  for  Complainant. 

If  for  any  reason  it  is  desired  to  issue  separate  subpoenas  the 
praecipe  should  so  direct. 


16.  Praecipe  for  Commission  on  Intebrogatories. 

(Title  of  court  and  cause.) 
To  clerk  of  said  court : 

In  above  entitled  cause  in  equity  please  select  some  proper  per- 
E.  p.— 10 


146  EQUITY   PLEADING   AND  PRACTICE 

son  ns  commissioner  and  issue  a  dcdimus  to  him  authorizing  him 
to  take  the  testimony  of  F.  G.  and  H.  K.,  upon  the  interroga- 
tories tiled  in  your  office  lor  that  purpose.     Witnesses  reside 

at 

Solicitor  for 

17.  PR.VECIPE   FOR   SUBPCENA   TO   WITNESS. 

(Title  of  court  and  cause.) 
To  clerk  of  said  court : 

In  ahove  entitled  cause  in  equity  please  issue  subpoena  to  F. 

G.,  a  witness  on  behalf  of ,  directing  him  to  appear  and 

testify  before ,  commissioner,  at ,  on  the 

Solicitor  for 

18.  Return. 

(In  the  Federal  Court:) 

tFnited  States  Marshal's  Office,    J 

District  of    } 

I  hereby  certify  that  I  received  the  within  writ  on  the 

day  of ,  19 .  . ,  and  personally  served  the  same  on  the 

day  of  ,  19 .  . ,  by  delivering  to  and  leaving 

with    ,   said  defendant  named  therein,  at  the  city  of 

,  in  said  district,  an  attested  copy  thereof. 

,19...  N.  0., 

United  States  Marshal, 
By ,  Deputy. 

19.  Appearance — General. 

(Title  of  court  and  cause.) 
To  J.  A.  C,  clerk  of  said  court: 

I  hereby  enter  the  appearance  of  A.  B.,  defendant  in  the  above- 
entitled  cause,  and  of  myself  as  his  solicitor. 

E.  F., 
Solicitor  for  Defendant  A.  B. 
Dated  January  10th,  A.  D.  1902. 

20.  Appearance  in  Person. 

(Title  of  court  and  cause.) 
To  clerk  of  said  court: 

Please  enter  my  appearance  as  defendant  in  above  cause  on 
the day  (or  as  of  the  date  of  the  filing  hereof). 


'  '  forms  op  bill  *  147 

21.  Special  or  Limited  Appearance. 

(Title  of  court  and  cause.) 
Now  comes  J.  N.,  who  is  named  in  the  bill  of  complaint  as  one 

of  the  defendants  in  the  above-entitled  cause,  and  enters 

special  and  limited  appearance  in  this  cause,  for  the  sole  purpose 
of  objecting  to  the  jurisdiction  of  the  court,  and  for  the  purpose 
of  moving  to  quash  the  alleged  service  and  for  no  other  purpose ; 
and,  for  grounds  of  said  motion  to  quash  said  alleged  service, 
said  defendant  shows  to  the  court:  (set  forth  objections  to  juris- 
diction). 


C.  &.  F.,  Defendant. 

Solicitors  for  Defendant,  J.  N. 

22.  Default  Order  Where  Service  by  Publication. 

(Title  of  court  and  cause.) 

It  appearing  to  the  court  that  the  defendant,  Richard  Roe,  has 
been  duly  notified  of  the  pendency  of  this  cause,  by  publication, 
and  by  mailing  the  same  to  him,  pursuant  to  the  statute  in  such 
case  made  and  provided,  on  motion  of  complainant's  solicitor. 

It  is  ordered,  etc.     (See  form  No.  25.) 

23.  Default  Order  Where  There  is  an  Appearance. 

(Title  of  court  and  cause.) 

It  appearing  to  the  court  that  the  defendant,  A.  B.,  has  filed 
his  appearance  herein,  and  has  failed  to  answer  the  bill  of  com- 
plaint herein,  on  motion  of  complainant's  solicitor. 

It  is  ordered,  etc. 

24.  Default  Order  on  Withdrawal  op  Answer. 

(Title  of  court  and  cause). 

On  motion  of  the  solicitor  for  the  defendant,  A.  B., 

It  is  ordered  that  leave  be,  and  the  same  is  hereby,  given  the 
said  defendant  to  withdraw  his  answer  heretofore  filed  in  this 
cause,  and  the  sam«  is  he-reby  withdrawn. 

And  it  appearing  to  the  court  that  the  defendant  has  failed  to 
answer  the  bill  of  complaint  in  this  cause,  on  motion  of  com- 
plainant's solicitor, 

It  is  ordered,  etc. 

25.  Order  of  Default  and  Pro  Confesso. 

(Title  of  court  and  cause.) 

It  appearing  to  the  court  that  due  personal  service  of 

has  beeji  had  on  the  defendant,  A.  B.,  at  least days  be- 
fore the   ,  being  the  return  day  of  said   ,  on 

the  motion  of  complainant's  solicitor. 


148  EQUITY   PLRiVDING   AND   PRACTICE 

It  is  ordered  by  the  court  that  the  defendant  above  named  be, 
and  he  is  hereby.  ro(|uired  1o  pk>ad,  answer,  or  demur,  instanter, 
to  tlie  bill  of  complainant  filed  in  this  cause ;  and  no  plea,  answer, 
or  demurrer,  or  other  matter  of  defense  being  interposed  herein 
by  the  said  defendant,  and  he  being  now  here  three  times 
solemnly  called  in  open  court,  comes  not,  nor  does  any  person 
for  him,  but  herein  he  makes  default,  which  is,  on  motion., 
ordered  to  be  taken,  and  the  same  is  herein  entered  of  record. 

And  it  is  ordered  that  the  said  bill  of  complaint  be,  and  the 
same  is  hereby,  taken  pro  confesso  against  the  said  A.  B.,  for 
want  of  his  answer  thereto. 

26.  Affidavit  in  Support  of  ]Motion  to  Set  Aside 

Order  Pro  Confesso. 

(Title  of  court  and  cause). 

A.  B.,  the  above-named  defendant,  makes  oath  and  says  that 
(state  facts  showing  there  was  no  negligence  in  failing  to  answer 
and  also  showing  meritorious  defense  to  the  hill).  Affiant  there- 
fore prays  that  the  default  heretofore  entered  in  this  cause 
against  him  may  be  set  aside,  and  that  he  may  be  permitted  to 
file  his  answer  herewith  exhibited,  a  copy  of  which  is  hereto  at- 
tached, and  marked  "Exhibit  A,"  and  made  a  part  hereof, 
which  answer  he  now  offers  to  file  in  this  cause. 

Subscribed  and  sworn  to,  etc. 

A.  B. 

27.  Order  Vacating  Default  and  Order  Pro 

Confesso. 

(Title  of  court  and  cause.) 

This  cause  having  come  on  to  be  heard,  upon  the  motion  of 
A.  B.,  defendant  herein,  to  set  aside  the  default  and  decree  pro 
confesso  herein,  and  on  the  affidavit  filed  in  support  of  said 
motion,  and  the  proposed  answer  to  be  filed  herein,  and  the 
court  being  fully  advised  in  the  premises,  on  motion  of  the  solic- 
itor for  the  said  defendant. 

It  is  ordered,  adjudged,  and  decreed  that  the  said  default 
and  decree  pro  confesso  herein  be,  and  the  same  are  hereby 
vacated  and  set  aside,  and  that  said  defendant  be  allowed,  and 
leave  is  hereby  given  him  to  file  his  answer  to  said  bill  of  com- 
plaint. (If  any  terms  are  imposed  as  a  condition  to  setting  aside 
the  default,  state  them.) 

28.  Petition  for  Appointment  of  Guardian 

Ad  Litem. 

(Title  of  court  and  cause.) 

To  the  Honorable  the  Judges  of  the Court  of , 

in  Chancery  Sitting: 


FORMS  OF   BELL  149 

Your  petitioner,  X.  Y.,  respectfully  represents  that  he  is  the 
complainant  in  the  above-entitled  cause;  that  the  defendant, 
A.  B.,  is  a  male  infant  or  minor  under  the  age  of  twenty-one 

years ;  that  a   duly  issued  out  of  this  court  on  the 

day  of   ,  A.  D ,  returnable  to  the 

term  of  this  court,  A.  D ,  directed  to  the 

of  ,  commanding  him  that  he   the 

said  defendant,  A.  B.,  and  that  said was  duly  served 

by  the of on  the  said  A.  B.  by  delivering  a 

true  copy  thereof  to  him  on  the day  of ,  A.  D. 

,  being  more  tlian days  before  the  return  day 

thereof;  that  said  defendant,  A.  B.,  has  not  appeared  in  this 
cause;  that  no  guardian  ad  litem  has  been  appointed  for  said 
A.  B.,  and  no  application  for  the  appointment  of  a  guardian  ad 
litem  has  been  made  by  or  on  behalf  of  said  infant ;  and  that  said 

A.  B.  resided  with  his  father,  J.  B.,  at  the  city  of ,  in 

the  county  of ,  in  the  state  of 

Your  petitioner  therefore  prays  that  some  fit  and  suitable  per- 
son may  be  appointed  by  the  court  as  guardian  ad  litem  of  said 
defendant,  A.  B.,  in  this  suit,  to  appear  and  defend  the  said  suit 
for  the  said  A.  B. 


Petitioner. 

J.  G., 

Solicitor  for  Petitioner. 
(Conclude  with  verification  as  in  bill.) 

29.  Order  Appointing  Guardian  Ad  Litem. 

(Title  of  court  and  cause.) 

On  reading  and  filing  the  petition  of  the  complainant  for  th-e 
appointment  of  a  guardian  ad  litem  for  the  defendant,  A.  B., 

and  it  appearing  to  the  court  that  a duly  issued  out  of 

this  court  on  the day  of ,  A.  D ,  re- 
turnable to  the term  of  this  court,  A.  D ,  di- 
rected to  the   of  ,  commanding  him  that  he 

the  defendant,  A.  B.,  and  that  said was  duly 

served  by  the of on  the  said  A.  B.  by  deliver- 
ing a  true  copy  thereof  to  him  on  the day  of, , 

A.  D ,  being  more  than days  l>efore  the  return 

day  thereof,  and  it  further  appearing  to  the  court  that  the  said 
defendant,  A.  B.,  is  a  male  infant  or  minor  under  the  age  of 
twenty-one  years;  that  said  A.  B.  has  not  appeared  in  this  cause; 
that  no  guardian  ad  litem  has  been  appointed  for  said  A.  B.,  and 
no  application  for  the  appointment  of  a  guardian  ad  litem  has 
been  made  by  or  on  behalf  of  said  A.  B. ;  and  that  the  said  A.  B. 
and  his  father,  J.  B.,  have  been  duly  served  with  a  copy  of  said 
petition,  and  have  had  duo  notice  of  this  motion ;  and  that  E.  R. 


]50  EQUITY   PLEADING   AND   PRACTICE  ' 

has  consented  to  net  as  guardian  ad  litem  of  said  A.  B.    On  mo- 
tion of  complainant's  solicitor, 

It  is  ordered  that  E.  R.,  a  solicitor  of  this  court,  and  a  fit  and 
suitable  person,  be,  and  he  is  hereby,  appointed  guardian  ad 
litnn  of  said  defendant,  A.  B.,  in  this  suit,  and  is  authorized  to 
appear  and  di^fend  the  said  suit  for  the  said  A.  B.  as  said  guar- 
dian ad  litem. 

30.  A  Special  and  General  Demurrer. 

(Title  of  court  and  of  cause.) 

The  demurrer  of  C.  D.,  defendant,  to  the  bill  of  complaint  of 
A.  B.,  complainant. 

This  defendant,  by  protestation,  not  confessing  or  acknowledg- 
ing all  or  any  of  the  matters  and  things  in  the  said  bill  of  com- 
plaint contained,  to  be  true,  in  such  manner  and  form  as  the 
same  are  therein  and  thereby  set  forth  and  alleged,  demurs  to 
said  bill,  and  for  cause  of  demurrer  shows,  that,  etc. 

(Here  set  forth  the  special  cause  of  demurrer.) 

Also  that  the  complainant  has  not,  in  and  by  his  said  bill,  made 
or  stated  such  a  case  as  entitles  him,  in  a  court  of  equity,  to  any 
discovery  or  relief  from  or  against  this  defendant  touching  any 
of  the  matters  contained  in  the  said  bill. 

Wherefore,  and  for  divers  other  good  causes  of  demurrer  ap- 
pearing in  the  said  bill  of  complaint,  this  defendant  demurs  to 
the  said  bill,  and  to  all  the  matters  and  things  therein  contained, 
and  prays  the  judgment  of  this  honorable  court  whether  he  shall 
be  compelled  to  make  any  further  or  orther  answer  to  the  said 
bill  and  he  prays  to  be  dismissed  with  his  reasonable  costs  in 
this  behalf  sustained. 


By ,  Solicitor  for  Defendant. 

31.  General  Demurrer.  I 

(Title  of  court,  of  cause,  and  address  to  judges.)  i 

"The  demurrer  of  C.  D.  and  E.  F.,  defendants.  ' 

These  defendants,  not  confessing  all  or  any  of  the  matters  in 
the  bill  of  complaint  contained  to  be  true  as  therein  set  forth,  do 
demur  to  said  bill,  for  that  the  same  does  not  state  such  a  case, 
nor  contain  any  matter  of  equity,  entitling  the  complainant  to 
any  relief  against  these  defendants.  Wherefore  they  pray  the 
judgment  of  the  court  whether  they  shall  be  compelled  to  fur- 
ther answer  said  bill,  and  further  pray  to  be  dismissed  with 
their  costs. 


:  forms  of  bill  151 

32.  Special  Demurrer  to  Bill. 

(Title  of  court,  of  cause,  and  address  to  ju.dges.) 
The  demurrer  of  C.  D.  and  E.  F.,  defendants. 
These  defendants,  not  confessing  all  or  any  of  the  matters  and 
things  in  the  bill  of  complaint  contained  to  be  true  as  therein 
alleged,  do  demur  to  said  bill,  and  for  cause  thereof  showeth  that, 
etc.  (here  set  forth  specifically  the  grounds  of  demurrer). 

Wherefore  they  pray  the  judgment  of  the  court  whether  they 
shall  be  compelled  to  further  answer  said  bill.  And  further 
pray  to  be  dismissed,  with  costs. 

33.  Demurrer  to  Part  of  Bill. 

(Title  of  court,  of  cause,  and  address  to  judges.) 
The  demurrer  of  C.  D.  and  E.  F.  to  part  of  bill. 
These  defendants,  not  confessing  all  or  a,ny  of  the  matters 
and  things  in  the  bill  of  complaint  contained  to  be  true  as  there- 
in alleged,  do  demur  to  so  much  of  said  hill  as  (here  describe 
the  part  oi'  parts  of  hill  demurred  to,  and  set  forth  the  grounds 
of  demurrer  thereto). 

Wherefore  defendants  pray  the  judgment  of  the  court  whether 
they  shall  be  compelled  to  further  answer  make  to  said  parts  of 
the  bill  herein  demurred  to. 

34.  Demurrer  for  Want  of  Parties. 

(Title  of  court,  of  cause,  and  address  to  judges.) 
The  demurrer  of  C.  D.  and  E.  F.,  defendants. 
That  it  appears  by  the  complainant's  bill,  that  C.  D.,  therein 
named,  is  a  necessary  party  to  the  said  bill,  inasmuch  as  it  is 
therein  stated,  that  X.  Y.,  the  testator  in  the  said  bill  named, 
did,  in  his  lifetime,  by  certain  conveyances  made  to  the  said 

C.  D.,  in  consideration  of dollars,  convey  to  him  by  way 

of  mortgage,  certain  estates,  in  the  said  bill  particularly  men- 
tioned and  described,  for  the  purpose  of  paying  the  said  testa- 
tor's debts  and  legacies;  but  the  complainant  has  not  made  the 
said  C.  D.  a  party  to  said  bill. 
Wherefore,  etc. 

35.  Demurrer  for  Multifariousness. 

(Title  of  court,  of  cause,  and  address  to  judges.) 
The  demurrer  of  C.  D.  and  E.  F.,  defendants. 

That  it  appears  by  the  said  bill  that  the  same  is  exhibited 
against  this  defendant,  and  the  several  other  persons  therein 
named  as  defendants  thereto,  for  distinct  matters  and  causes,  in 
several  whereof,  as  appears  by  the  said  bill,  this  defendant  is 
not  in  any  manner  interested  or  concerned,  and  that  the  bill 
is  altogether  multifarious. 

Wherefore,  etc. 


152  equity  pleading  and  pr-vctice 

36.  Demurrer  or  Motion  to  Dismiss,  Plea,  and 

Answer  in  One  (Federal  Court). 

(Title  of  court,  of  cause,  and  address  to  judges.) 
Demurrer,  plea  and  answer  of  E.  F.  and  C.  D.,  defendants. 

I.  These  defendants,  not  confessing  all  or  any  of  the  matters 
and  things  in  said  hill  contained  to  be  true  as  therein  alleged,  do 
demur  to  said  bill,  and  for  cause  of  demurrer  do  show  that 
(here  set  forth  grounds  of  demurrer.) 

Wherefore  they  pray  judgment  of  this  court  whether  they 
shall  he  required  to  further  answer  said  bill  and  move  the  court 
to  dismiss  said  bill  for  want  of  equity. 

II.  And  the  said  defendants,  not  waiving  the  foregoing  de- 
murrer, but  wholly  relying  thereon,  for  a  plea  to  said  bill  do 
aver  and  say  that  {here  set  forth  the  grounds  of  plea). 

All  of  which  matters  the  said  defendants  do  plead  to  said 
bill,  and  pray  the  judgment  of  this  court  whether  they  shall  be 
compelled  to  further  answer  said  bill,  and  move  the  court  to  dis- 
miss said  bill  for  want  of  equity. 

III.  And  the  said  defendants,  not  waiving  their  said  demur- 
rer nor  their  plea,  but  relying  thereon,  for  answer  to  said  bill 
do  say  that  (here  set  forth  in  short  and  simple  terms  the  de- 
fense to  each  claim  asserted  hy  the  Mil,  omitting  any  mere 
statement  of  evidence  and  avoiding  any  general  denial  of  the 
averments  of  the  hill,  hut  specifically  admitting  or  denying  or 
ciplaining  the  facts  upmi  which  the  plaintiff  relics,  unless  the 
defendant  is  without  knowledge,  in  which  case  he  must  so  state, 
such  statement  operating  as  a  denial.  Averments  of  the  hill,  other 
than  of  value  or  of  amount  of  damage,  if  not  denied  hy  the 
answer,  will  he  deemed  confessed  hy  the  answer,  except  as  against 
an  infant,  lunatic  or  other  person  non  compos  and  not  under 
guardianship.  The  answer  must  also  state  any  counter-claim 
arising  out  of  the  suhject -matter  of  the  suit). 

Wherefore  the  defendant  prays  to  be  hence  dismissed  with 
costs,  and  that  complainant's  bill  be  dismissed  for  want  of  equity. 

37.  Motion  to  Dismiss  the  Bill  (Equivalent  to  i 

Demurrer).  ' 

(Title  of  court  and  of  cause.) 

And  now  come  the  defendants  C.  D.  by  E.  F.,  their  solicitors, 
and  move  the  court  to  dismiss  the  bill  for  want  of  equity,  and 
also  because  (here  state  grounds  of  any  special  demurrer). 

38.  Order  Denying  Motion  to  Dismiss. 
(Title  of  court  and  of  cause.) 

This  cause  coming  on  to  be  heard  upon  the  motion  of  C.  D. 
by  E.  F.  his  solicitor,  to  dismiss  the  bill  for  want  of  equity; 


FORMS   OF   BILL  153 

now  after  argument  and  upon  consideration  said  motion  is  de- 
nied, and  said  defendant  is  ruled  to  answer  in  five  days, 

39.  Order  Sustaining  Demurrer  and 

Dismissing  Bill, 

(Title  of  court  and  cause.) 

This  cause  coming  on  now  to  be  heard  upon  the  demurrer  of 
the  defendant,  C.  D.,  filed  herein,  to  the  bill  of  complaint,  after 
argument  of  counsel  and  due  deliberation  by  the  court. 

It  is  ordered,  adjudged,  and  decreed  that  the  demurrer  of  the 
said  defendant  to  the  bill  of  complaint  be,  and  it  is  hereby,  sus- 
tained, on  the  ground  that  there  is  no  equity  in  the  said  bill. 

And  the  complainants  electing  to  stand  by  their  said  bill  of 
complaint,  and  moving  that,  if  the  court  holds  that  there  is  no 
equity  in  the  said  bill,  the  court  disposes  of  it,  in  order  that  they 
may,  by  appeal  or  writ  of  ei-ror,  secure  the  review  of  the  action 
of  the  court  in  so  holding ;  and  the  court  finding  that  there  is  no 
equity  in  the  said  bill : 

It  is  therefore  ordered,  adjudged,  and  decreed  that  said  bill  of 
complaint  be,  and  it  is  hereby,  dismissed  out  of  court  for  want 
of  equity,  and  at  complainant's  costs,  and  that  this  decree  be 
treated  and  regarded  and  stand  in  all  respects  as  the  final  decree 
in  this  cause, 

40.  Order  Overruling  Demurrer. 

(Title  of  court  and  cause.) 

This  cause  coming  on  to  be  heard  upon  the  demurrer  of  the 
defendant,  C.  D.,  filed  herein,  to  the  bill  of  complaint,  after 
argument  of  counsel  and  due  deliberation  by  the  court,  said  de- 
murrer is  overruled,  and 

It  is  ordered  that  the  said  defendant,  C.  D.,  answer  the  bill  of 
complaint  herein  within  ten  days  from  this  day. 

41.  Plea. 

(Title  of  court  and  of  cause.) 

The  plea  of  C.  D.,  defendant,  to  the  bill  of  compalint  of  A,  B,, 
complainant. 

This  defendant,  by  protestation,  not  confessing  or  acknowledg- 
ing all  or  any  of  the  matters  and  things  in  the  complainant's 
said  bill  mentioned,  to  be  true  in  such  manner  and  form  as  the 
same  are  therein  and  thereby  set  forth  and  alleged,  doth  plead 
thereunto,  and  for  pleas  says,  that,  etc.  (Here  set  forth  the  sub- 
ject-matter of  the  pica,  and  conclude  as  foUoivs:)  All  which 
matters  and  things  this  defendant  avers  to  be  true,  and  pleads 
the  same  to  the  whole  of  the  said  bill,  and  demands  the  judgment 
of  this  honorable  court  whether  he  ought  to  be  compelled  to 


154  EQUITY    PLEADING    AND    rRACTICE 

make  any  answer  to  the  said  bill  of  complaint;  and  prays  to  be 
hence  dismissed  with  his  reasonable  costs  in  this  behalf  most 
wrongfully  sustained. 

By ,  Solicitor  for  Defendant. 

(If  the  plea  is  of  matters  of  fact,  and  not  of  jurisdiction,  add 
affidavit.) 

(Note.)  Signing  of  Plea.  A  plea  must  be  signed  by  the 
p<irty,  as  well  as  counsel ;  but  where  it  is  not  sworn  to,  the  signa- 
ture of  counsel  is  sufficient. 

When  plea  must  be  sworn  to.  A  plea  in  bar  of  matters  of  fact 
must  be  sworn  to;  but  pleas  to  the  jurisdiction  of  the  court  or 
disability  of  the  person  of  the  complainant,  or  pleas  in  bar  of 
any  matter  of  record,  or  of  matters  recorded,  as  of  a  record  in 
the  court  itself,  or  any  other  court,  need  not  be  on  oath.  (1 
Barb.  117.) 

In  all  cases  except  in  federal  practice,  where  a  plea  is  accom- 
panied by  an  answer,  it  must  be  put  in  upon  oath.  A  plea  must 
be  verified  by  oath,  although  the  complainant  has  expressly- 
waived  an  ansv.'er  from  the  defendant  on  oath.  If  it  is  not  sworn 
to  when  oath  is  proper,  the  complainant  may,  if  application  is 
made  in  apt  time,  have  it  stricken  from  the  files,  but  the  appli- 
cation must  be  made  before  the  argument  of  the  plea. 


42.  Plea  to  Part  of  Bill. 

(Title  of  court,  of  cause,  and  address  to  judges.) 
The  plea  of  C.  D.  and  E.  F.,  defendants,  to  part  of  said  bill. 
These  defendants,  not  confessing  all  or  any  of  the  matters 
in  said  bill  of  complaint  contained  to  be  true  as  therein  alleged, 
for  plea  to  so  much  and  such  part  of  said  bill  as  (here  describe 
part  pleaded  to),  aver  and  say  that  (here  set  forth  the  matter  of 
the-  plea),  all  of  which  matters  and  things  these  defendants  do 
aver  to  be  tj'ue,  and  they  plead  the  same  to  so  much  of  said  bill 
as  is  hereinbefore  described,  and  pray  the  judgment  of  the  court 
whether  they  shall  be  required  to  further  answer  so  much  of  said 
bill  as  is  covered  by  this  plea. 


I,  ,  defendant  in  the  above  cause,  being  duly  sworn, 

do  say  that  I  have  read  the  foregoing  plea  to  the  bill  of  com- 
plaint and  the  matters  therein  stated  are  true  in  point  of  fact. 


Subscribed  and  sworn  to  before 
this day  of ,  191. 


forms  of  bill  155 

43.  Plea  in  Federal  Court. 

(Title  of  court,  of  cause,  and  address  to  judges.) 
The  plea  of  C.  D.  and  E.  F.  to  the  bill  of  complaint. 
These  defendants,  not  confessing  all  or  any  of  the  matters  in 
said  bill  of  complaint  to  be  true  as  therein  alleged,  for  plea  to 
said  bill  aver  and  say  (here  set  forth  the  matter  of  the  plea). 

All  of  which  matters  and  things  these  defendants  do  aver  to 
be  true,  and  plead  the  same  in  bar  (or,  in  abatement,  as  the  case 
may  be)  of  complainant's  said  bill,  and  pray  the  judgment  of 
the  court  whether  they  shall  be  compelled  to  further  answer  said 
bill,  and  pray  to  be  hence  dismissed  with  costs. 


44.  Plea  of  Former  Adjudication. 

(Title  of  court  and  of  cause.) 

The  plea  of ,  defendant,  to  the  bill  of  complaint. 

This  defendant,  for  a  plea  to  said  bill,  avers, 

That  after  the  matters  and  things  alleged  in  complainant's 
bill,  and  before  the  commencement  of  this  suit,  to-wit,  etc.,  in 

the  Circuit  Court  of  the  county  of ,  one  E.  F.  filed  his 

bill  in  chancery,  against  this  defendant  and  one  G.  H.,  charging, 
etc.  (Here  insert  the  suh 3 ect -matter  of  the  s^uit),  and  such, 
rights  and  interests  tlierein,  as  he  now  claims  by  his  present  bill ; 
and  praying  relief  against  this  defendant  in  the  same  manner, 
and  for  the  same  matters,  and  to  the  same  effect  as  the  complain- 
ant now  prays  by  his  said  present  bill;  and  that  this  defendant 
and  the  said  G.  H.  appeared  and  put  in  their  answer  to  the  said 
former  bill,  and  the  complainant  replied  thereto ;  and  evidence 
being  taken  in  said  former  suit  relating  to  the  matters  in  contro- 
versy, and  the  said  cause  coming  on  for  hearing  before  said 
court,  a  final  decree  was,  on,  etc.,  rendered  therein,  in  form  and 
effect  following.  (Here  insei't  the  findings  and  decree  in  former 
ca^e)  and  that  the  said  former  bill  and  the  said  several  proceed- 
ings and  final  decree  in  the  said  former  suit  still  remains  deter- 
mined and  in  full  force  and  effect. 

Wherefore,  said  defendant  pleads  said  former  adjudication  to 
the  whole  of  said  bill,  and  demands  the  judgment  of  this  court 
whether  he  should  make  any  answer  to  said  bill,  and  prays  to 
be  hence  dismissed  with  his  reasonable  costs. 


By 

Solicitor  for  defendant. 


156  equity  pleading  and  practice 

45.  Plea  op  the  Statute  of  Limitations. 

(Title  of  court  and  cause.) 

Defendant  C.  D.  by  M.  F.,  his  solicitor,  for  a  plea  to  said  bill, 
avers ; 

That  if  the  complainant  (either  in  his  own  right  or  as  executor 
of  E.  F.,  deceased,  in  the  bill  named),  ever  had  any  cause  of  suit 
against  him,  this  defendant,  for  or  concerning  any  of  the  mat- 
ters, transactions  or  dealings  in  the  said  bill  of  complaint  men- 
tioned, which  this  defendant  doth  in  no  sort  admit,  the  same  did 
accrue  or  arise  above years  before  the  said  bill  of  com- 
plaint was  exhibited  in  this  honorable  court ;  and  this  defendant 
further  for  plea  says  and  doth  aver,  that  he  did  not  at  any  time 

within years  before  the  filing  of  the  complainant's  said 

bill  of  complaint,  ever  promise  or  agree  to  come  to  any  account 
for,  or  to  pay,  or  any  way  satisfy  the  complainant  any  money, 
for  or  concerning  any  the  matters,  transactions  or  dealings  in 
the  complainant's  said  bill  of  complaint  charged  or  alleged. 

Wherefore,  etc. 

46.  Plea  of  a  Kelease  to  Part  of  Bill,  With  Answer 

in  Support  of  the  Same. 
(Anomalous  Plea.) 

(Title  of  court  and  cause.) 

That  as  to  so  much  and  such  part  of  the  complainant's  bill  as 
seeks  an  account  of  the  several  dealings  and  transactions  between 
the  complainant  and  this  defendant,  previously  and  up  to  the 

day  of ,  etc.,  and  prays  the  balance,  if  any, 

which  shall  be  found  due,  upon  taking  such  account,  from  this 
defendant,  may  be  paid  by  him  to  the  complainant ;  this  defend- 
ant doth  plead  thereto,  and  for  plea  says,  that  previous  to  the 
filing  of  the  complainant's  bill,  that  is  to  say,  on  etc.,  the  com- 
plainant, in  consideration  of  the  sum  of dollars,  then 

paid  to  him  by  this  defendant,  by  a  certain  Avriting  of  release, 
under  his  hand,  and  sealed  with  his  seal,  ready  to  be  produced 
to  this  honorable  court,  did  for  himself,  his  executors  and  ad- 
ministrators, remise,  release,  and  forever  quit-claim  unto  this 
defendant,  his  heirs,  executors  and  administrators,  among  other 
things,  the  several  matters  and  things  in  the  complainant's  bill 
mentioned  and  complained  of,  an  account  whereof  is  thereby 
sought  against  this  defendant  as  aforesaid,  and  all  suits  and  de- 
mands whatsoever,  both  at  law  and  in  equity,  which  the  com- 
plainant thus  had,  or  might  thereafter  have  in  respect  of  the 
several  dealings  and  transactions,  matters  and  things,  in  the  said 
bill  mentioned,  or  any  of  them;  and  this  defendant  avers,  that 
the  said  release  was  freely,  fairly  and  voluntarily  given  and  exe- 
cuted by  the  complainant,  on  the  day  the  same  bears  date ;  and 
that  the  complainant  well  knew  the  nature  and  effect  thereof  pre- 


FORMS   OF   BILL  157 

viously  to  giving  and  executing  the  same;  and  that  the  sum  of 

—  dollars  so  paid  by  this  defendant  to  the  complainant  as 

aforesaid,  was  a  full  and  fair  equivalent  for  any  demand  which 
the  complainant  could  or  might  have  against  this  defendant  in 
respect  of  the  several  matters  therein,  and  in  the  said  bill  also, 
mentioned,  or  any  of  them. 

Therefore,  this  defenadnt  pleads  the  said  release  in  bar  to  so 
much  of  the  complainant's  bill  as  is  hereinbefore  particularly 
mentioned,  and  prays  the  judgment  of  this  honorable  court, 
whether  he  ought  to  be  compelled  to  make  any  further  answer  to 
so  much  of  the  said  bill  as  is  before  pleaded  unto. 

And  this  defendant  not  waiving  his  said  plea,  but  insisting 
thereon  for  further  answer  in  support  gf  his  said  plea,  says  he 
denies  that  the  said  release  was  unduly  obtained  by  this  defend- 
ant from  the  complainant,  or  that  the  complainant  was  ignorant 
of  the  nature  an'd  effect  of  such  release,  or  that  the  consideration 
paid  by  this  defendant  to  induce  the  complainant  to  execute  the 
same,  was  inadequate  to  the  just  claims  and  demands  of  the  com- 
plainant against  this  defendant,  in  respect  to  the  several  deal- 
ings and  transactions  in  the  said  bill  mentioned,  or  any  of  them ; 
and  this  defendant  denies,  etc.,  etc.  (Here  insert  any  other  de- 
nial or  allegation  of  fact  that  the  case  may  require,  and  add  affi- 
davit of  the  truth  of  the  plea  and  answer.) 

47.  Order  Allowing  Plea  (Upon  Hearing  as  to 

Sufficiency  of  Plea). 

(Title  of  court  and  cause.) 

The  plea  of  the  defendant,  C.  D.,  to  the  whole  (or  part)  of 
the  complainant's  bill  in  this  cause,  coming  on  to  be  argued,  and 
the  solicitors  for  the  respective  parties  having  been  heard  there- 
on, and  the  court,  being  fully  advised  in  the  premises,  does  hold 
the  said  plea  to  be  good  and  sufficient,  and 

It  is  ordered  that  the  said  plea  do  stand  and  be  allowed. 

48.  Order  Overruling  Plea  for  Insufficiency. 

(Title  of  court  and  cause.) 

The  plea  of  the  defendant,  C.  D.,  to  the  bill  of  complaint  in 
this  cause,  coming  on  to  be  argued  before  the  court,  and  the  so- 
licitors for  the  respective  parties  having  been  heard  thereupon, 
and  the  court,  being  fully  advised  in  the  premises,  does  hold  the 
said  plea  to  be  insufficient,  and  therefore, 

It  is  ordered  that  the  same  be  overruled,  and  that  the  said 
defendant,  C.  D.,  answer  the  bill  of  complaint  herein  within 
days  from  this  date. 


168  equity  pleading  and  practice 

49.  Answer. 

(Note.) — An  answer  ahvaj's  begins  with  its  title,  specifying 
which  ol"  the  defendants  it  is  the  answer,  and  the  names  of  the 
complainants  in  the  suit  in  which  it  is  filed  as  an  answer.  It  is  ir- 
reguhir,  and  may  be  rejected,  if  it  is  not  properly  entitled,  and 
does  not  show  what  bill  it  purports  to  answer. 


50.  I.    The  Title  of  Answers. 

(Title  of  answer  by  one  defendant.) 
The  answer  of  C.  D.,  the  defendant,  to  the  bill  of  complaint  of 

A.  B.,  the  complainant. 

If  the  defendant  Avas  misnamed  in  the  bill,  he  may  in  the  body 

of  his  answer  correct  it  thus :  the  answer  of  Walter  Holden  (in 

the  hill  hy  mistake  called  Willie  Holden). 


(Title  of  answer  to  amended  bill.) 
The  answer  of  C.  D.,  the  defendant,  to  the  amended  bill  of 
complaint  of  A.  B.,  the  complainant. 


(Title  of  answer  where  exceptions  have  been  taken  to  a  former 
answer,  and  the  bill  has  also  been  amended.) 
The  further  answer  of  C.  D.,  one  of  the  defendants  to  the  origi- 
nal bill,  and  his  answer  to  the  amended  bill  of  complaint  of 
A.  B.,  the  complainant. 


(Title  of  amended  answer.) 
The  amended  answer  of  C.  D.,  the  defendant,  to  the  bill  of 
complaint  of  A.  B.,  the  complainant. 


(Title  of  answer  by  infants  by  their  guardian  ad  litem.) 
The  answer  of  C.  D.,  an  infant  under  the  age  of  twenty-one 
years,  by  E.  F.,  his.  guardian  ad  litem,  to  the  bill  of  complaint 
of  A.  B.,  the  complainant. 

51.      II.  The  Commencement  of  an  Answer. 

(Introduction  to  an  answer  of  one  defendant.) 
This  defendant,  now  and  at  all  times  hereafter,  saving  to  him- 
self all  manner  of  exception  which  can  or  may  be  had  or  taken 
to  the  many  errors,  uncertainties  and  other  imperfections  in  the 
said  bill  contained,  for  answer  thereunto,  or  to  such  parts  there- 
of as  are  material  or  necessary  for  him  to  make  answer  unto, 
says,  etc. 


FORMS   OF  BILL  159 

52.  III.    Answers  and  Discovery. 

And  this  defendant,  further  answering,  says  that  he  has  been 
informed  and  believes  it  to  be  true,  that,  etc. ; 
This  defendant  admits  that,  etc. ; 

or, 
This  defendant,  further  answering,  denies,  etc. ; 

or. 
This    defendant,    further    answering,    says    that    he    has    no 
knowledge,  information  or  belief,  and  therefore  denies  that,  etc. 

52A.  IV.    Defenses. 

And  this  defendant  avers  that  (liere  state  any  affirmative 
defenses) . 

53.  V.     Conclusion  op  Ansv^ter. 

And  this  defendant  denies  all  other  matters,  causes  or  things 
in  the  complainant's  said  bill  of  complaint  contained,  material 
or  necessary  for  this  defendant  to  make  answer  unto  and  not 
herein  and  hereby  well  and  sufficiently  answered,  confessed,  tra- 
versed and  avoided  or  denied ;  all  which  matters  and  things  this 
defendant  is  ready  and  willing  to  aver,  maintain  and  prove,  as 
this  honorable  court  shall  direct. 

And  this  defendant,  further  answering,  denies  that  the  com- 
plainant is  entitled  to  the  relief,  or  any  part  thereof,  in  the  said 
bill  of  complaint  demanded,  and  prays  the  same  advantage  of 
this  answer  as  if  he  had  pleaded  or  demurred  to  the  said  bill  of 
complaint;  and  prays  to  be  dismissed  with  his  reasonable  costs 
and  charges  in  this  behalf  most  wrongfully  sustained. 

CD. 


Solicitor  for  Defendant. 

(If  answer  is  required  to  be  under  oath,  the  following  affidavit 
should  be  attached :) 

54.  Affidavit  to  Answer. 

State  of ,     \ 

County  of  ]  ^^' 

C.  D.  being  first  duly  sworn,  deposes  and  says  that  he  has  read 
{or  heard  read)  the  above  answer,  subscribed  by  him,  and  knows 
the  contents  thereof,  and  that  the  same  is  true,  of  his  own  know- 
ledge, except  as  to  matters  which  are  therein  stated  to  be  on  his 
information  and  belief,  and  as  to  those  matters,  he  believes  them 
to  be  true. 

(Jurat.) 


160  EQUITY    PLEADING    AND    PRACTICE 

The  answer  must  be  signed  by  the  defendant  putting  it  in,  un- 
less leave  has  been  obtained  to  file  an  answer  not  signed,  because 
originally  the  answer  was  always  under  oath  and  was  testimony 
in  the  cause.  (Dennison  v.  Bassford,  7  Paige  370.)  The  answer 
must  also  be  signed  by  counsel.  (2  Dan.  268.)  Counsel  must 
individually  sign  their  own  names  (U.  S.  Eq.,  Rule  24). 

The  signing  of  the  answer  by  the  defendant  may  be  waived 
by  the  complainant,  and  if  an  unsigned  answer  is  put  in  and 
the  complainant  files  a  replication,  that  step  on  his  part  will 
be  held  to  be  such  a  waiver.  (Fulton  Bank  v.  Beach,  2  Paige 
307.)  The  court,  under  special  curcumstances  will  permit 
the  defendant  to  file  an  answer  not  signed  by  him  as  when 
he  resides  at  a  distance,  or  has  gone  abroad  before  an  answer 
could  be  prepared  or  the  like.  (Dumond  v.  Magee,  2  Johns.  Ch. 
240.)  The  answer  of  a  corporation  is  put  in  under  the  corpor- 
ate seal  and  not  under  oath.  If  it  is  put  in  not  under  seal  it  will 
be  taken  from  the  files  as  irregular.  (Ranson  v.  Stonington  Sav. 
Bk.  2  Beasley,  13  N.  J.  Eq.  212 :  Supervisors  v.  Miss.  &  W.  R. 
Co.,  21  111.  338.)  But  unless  the  answer  of  the  corporation  is 
sworn  to  it  cannot  be  made  the  basis  of  a  motion  to  dissolve  a 
temporary  injunction ;  an  injunction  will  not  be  dissolved  upon 
the  filing  of  an  answer  not  on  oath  denying  the  equities  of  the 
Bill.     (Fulton  Bk.  v.  New  York,  etc.,  1  Paige  311.) 

Therefore,  if  an  injunction  bill  waives  an  answer  under  oath, 
the  defendant  may  still  put  in  an  answer  under  oath  and  so  treat 
it,  for  the  purpose  of  moving  to  dissolve  the  injunction  granted 
on  the  bill.     (Doughrey  v.  Topping,  4  Paige  94.) 

If  the  answer  must  be  sAvorn  to  it  should  be  done  before  the 
proper  officer.  "Who  is  such  proper  officer  depends  upon  the 
provisions  of  the  local  statute  and  the  rules  of  the  court.  (U. 
S.  Eq.,  Rule  36.) 

55.  Short  Answer  to  Bill  (Federal  Court). 

(Title  of  court,  of  cause,  and  addressi  to  Judges.) 

The  answer  of  C.  D.  and  E.  F.,  defendants  to  the  bill  of  com- 
plaint. 

These  defendants,  saving  and  reserving  unto  themselves  the 
benefit  of  all  exceptions  to  the  errors  and  imperfections  in  said 
bill  contained,  for  answer  to  so  much  thereof  as  they  are  advised 
it  is  necessary  or  material  for  them  to  answer  unto,  do  aver  and 
say  that  (het'e  insert  the  matters  responsive  to  the  hill,  as  well 
as  the  matters  of  defense). 

And  having  thus  fully  made  answer  to  said  bill,  these  defend- 
ants pray  to  be  hence  dismissed  with  costs. 


forms  op  bill  161 

56.  Answer  of  Infants  by  Their  Guardian 

Ad  Litem. 

The  answer  of  E.  D.  and  C.  D.,  infants,  under  the  age  of 

years,  bj^  E.  F.,  their  guardian  ad  litem,  to  the  bill  of 

complaint  of  A.  B.,  the  complainant. 

These  defendants  answering  by  their  guardian  ad  litem,  say, 
that  they  are  infants,  and  they  therefore  submit  their  rights  and 
interests  in  the  matter  in  question  in  this  cause,  to  the  tender 
consideration  and  protection  of  this  honorable  court,  and  pray 
strict  proof  of  the  matters  alleged  in  said  bill  of  complaint. 

E.  D. 
C.  D. 

By  E.  F.,  their  guardian,  ad  litem. 

57.  Answer  Setting  up  Defense  of  Statute 

OP  Limitations. 

And  these  defendants,  in  addition  to  the  foregoing  answer, 
aver  that  the  cause  of  action,  if  any  there  may  be,  arising  to  the 
complainants  on  account,  or  by  reason  of  the  several  allegations 
and  complainants  in  their  said  bill  contained,  did  not  accrue 

within  years  before  the  said  bill  was  tiled ;  and  this 

allegation  the  defendants  make  in  bar  of  the  said  complainants' 
bill,  and  pray  that  they  may  have  the  same  benefit  therefrom 
as  if  they  had  formally  pleaded  the  same. 

58.  Statement  in  Answer,  Claiming  the  Benefit 

OF  the  Statute  of  Frauds. 

(After  that  part  of  the  ansiver  which  shows  the  facts,  which 

make  the  statute  of  frauds  apply:) 

And  this  defendant  says,  that  by  the  statute  of ,  it  is 

among  other  things  provided,  that  no  action  shall  be  brought 
whereby  to  charge  any  person  upon  any  contract  of  any  lands, 
tenements  and  hereditaments,  or  any  interest  in  or  concerning 
them  unless  the  agreement  upon  which  such  action  should  be 
brought,  or  some  memorandum  or  note  in  writing  shall  be 
signed,  by  the  said  party  to  be  charged  therewith,  or  some  other 
person  by  him  lawfully  authorized  (give  the  language  of  the 
statute^ ;  and  this  defendant  insists  upon  the  said  statute,  and 
claims  the  same  benefit  as  if  he  had  pleaded  the  same. 

58A.         Short  Demurrer,  Plea,  and  Answer  in  the 
Federal  Courts. 

(Title  of  court  and  of  cause.) 

The  answer  of  defendant  C.  D.  to  the  bill  of  A.  B. 

C.  D.  answering,  moves  and  prays  the  court  to  dismiss  the  bill 

for  want  of  equity,  and  also  because  (here  state  grounds  for 

special  demurrer  to  bill). 
E.  p.— 11 


162  EQUITY    PLE.VDING    AND    PRACTICE 

And  said  defendant  further  answering,  for  a  plea  to  said  bill, 
avers  and  says  (state  matter  of  plea).  And  defendant  there- 
fore again  moves  <md  prays  the  court  to  dismiss  said  bill  for 
want  of  equity. 

And  said  defendant  now  still  insisting  upon  the  demurrer 
and  plea  aforesaid,  further  answering,  says:  (here  set  forth  an- 
swers as  directed  in  form  No.  36  ante). 


59.         Conclusion  of  an  Answer  Insisting  That  the 
Complainant  has  an  Adequate 
Remedy  at  Law. 

And  this  defendant  submits  to  this  honorable  court  that  all 
the  matters  in  the  complainant's  bill  mentioned  and  complained 
of.  are  matters  which  may  be  tried  and  determined  at  law,  and 
with  respect  to  which  the  complainant  is  not  entitled  to  any  re- 
lief from  a  court  of  ecjuity;  and  this  defendants  asks  that  he 
shall  have  the  same  benefit  of  this  defense  as  if  he  had  demurred 
to  the  complainant 's  bill ;  and  this  defendant  denies,  etc. 


60.  Disclaimer. 

(Title  of  court  and  cause.) 

The  disclaimer  of  C.  D.,  one  of  the  defendants,  to  the  bill  of 
complaint  of  A.  B.,  the  complainant. 

This  defendant,  saving  and  reserving  to  himself,  now  and  at 
all  times  hereafter,  all  manner  of  advantage  and  benefit  of  excep- 
tions and  otherwise  that  can  be  or  may  be  had  and  taken  to  the 
many  untruths,  uncertainties  and  imperfections  in  the  said  com- 
plainant's bill  of  complaint  contained,  for  answer  thereunto,  or 
unto  so  much,  or  such  part  thereof  as  is  material  for  this  defend- 
ant to  make  answer  unto,  says,  that  he  fully  and  absolutely  dis- 
claims all  manner  of  right,  title  and  interest  whatsover  in  and 
to  the  (here  describe  the  property  in  dispute)  in  said  bill  men- 
tioned, and  in  and  to  every  part  thereof. 

And  this  defendant  denies  all  other  matters,  causes  and  things 
in  the  complainant's  said  bill  of  complaint  contained,  material 
or  necessary  for  this  defendant  to  make  answer  unto,  and  not 
herein  and  hereby  well  and  sufficiently  answered,  confessed, 
traversed  and  avoided  or  denied ;  all  which  matters  and  things 
this  defendant  is  ready  and  willing  to  aver,  maintain  and  prove, 
as  this  honorable  court  shall  direct. 

And  this  defendant,  further  answering,  denies  that  the  com- 
plainant is  entitled,  as  against  this  defendant,  to  the  relief,  or 
any  part  thereof,  in  the  said  bill  of  complaint  demanded,  and 
prays  the  same  advantage  of  this  answer  as  if  he  had  pleaded  or 
demurred  to  the  said  bill  of  complaint ;  and  prays  to  be  dismissed 


FORMS  OF   BILL  163 

with  his  reasonable  costs  and  charges  in  this  behalf  most  wrong- 
fully sustained. 

CD. 


Solicitor  for  Defendant, 

(Add  affidavit,  if  required,  as  in  answer.) 

61.  Exceptions  for  Insufficiency. 

(Title  of  court  and  cause.) 

Exceptions  taken  by  the  said  complainant  to  the  answer  put 
in  by  the  defendant,  C.  D.,  to  the  said  complainant's  bill  of 
complaint : 

First  exception :  For  that  the  said  defendant,  C.  D.,  has  not, 
to  the  best  and  utmost  of  his  knowledge,  remembrance,  informa- 
tion, and  belief,  answered  and  set  forth  whether  (set  forth  the 
interrogatory  or  the  allegation  of  fact,  in  the  bill  which  is  not 
answered,  in  haec  verba). 

Second  exception :  For  that  the  said  defendant,  C.  D.,  has  not 
in  manner  aforesaid  answered  and  set  forth  whether,  etc.  (set 
forth  the  allegation  or  interrogatory  not  properly  answered). 

In  all  which  particulars,  the  answer  of  the  said  defendant,  C. 
D,,  is,  as  the  said  complainant  is  advised,  imperfect,  insufficient, 
and  evasive,  and  the  said  complainant  therefore  excepts  thereto, 
and  prays  that  the  said  defendant,  C.  D.,  may  put  in  a  further 
and  better  answer  to  the  said  bill  of  complaint. 

J.  D., 
Solicitor  for  Complainant. 

62.  Exceptions  for  Scandal  and  Impertinence. 

(Title  of  court  and  cause.) 

Exceptions  taken  by  the  complainant  to  the  answer  of  the  de- 
fendant^  C.  D.,  to  the  bill  of  complaint  in  this  cause,  for  scandal 
and  impertinence : 

First  exception :  For  that  the  said  answer  is  scandalous  from 
and  including  the  word  "they,"  in  the  third  line  of  the  second 
page,  down  to  and  including  the  word  ' '  appear, ' '  in  the  eleventh 
line  of  the  third  page  thereof. 

Second  exception :  For  that  the  said  answer  is  impertinent 
from  and  including,  etc.  (as  before). 

In  all  which  particulars  this  complainant  excepts  to  the  said 
answer  put  in  by  the  said  defendant,  C.  D.,  to  the  said  bill  of 
complaint,  as  scandalous  or  impertinent,  and  he  humbly  insists 
that  the  same  ought  to  be  expunged  from  the  said  answer. 


Solicitor  for  Complainant. 


164  equity  pleading  and  practice 

63.  Order  op  Reference  on  Exceptions. 

(Title  of  court  and  cause.) 

Exceptions  for  insufficiency  (or  impertinence  or  scandal)  hav- 
ing been  filed  to  the  answer  of  the  said  defendant,  C.  D.,  and  the 
said  defendant  not  having  submitted  to  any  of  the  said  excep- 
tions, on  motion  of ,  solicitor  for  complainant. 

It  is  ordered  that  it  be  referred  to  G.  F.,  one  of  the  masters  in 
chancery  of  this  court,  to  look  into  the  bill  of  complaint,  the 
answer  of  the  said  defendant,  and  such  exceptions,  and  to  report 
whether  such  exceptions  are  well  taken  or  not. 

64.  Report  Upon  Exceptions. 

(TiiJe  of  court  and  cause.) 

To  the  Honorable  Judges  of  said  court,  in  Chancery  Sitting : 

In  pursuance  of  an  order  of  this  court,  made  in  the  above-en- 
titled cause  on  the day  of ,  A.  D.  1902,  where- 
by it  was  referred  to  the  undersigned,  one  of  the  masters  in 
chancery  of  this  court,  to  look  into  the  complainant's  bill  of 
complaint,  the  answer  of  the  said  defendant,  C.  D.,  and  the  ex- 
ceptions taken  to  said  answer  by  said  complainant,  and  report 
v.'hether  said  exceptions  are  well  taken  or  not: 

I,  the  said  master,  do  hereby  respectfully  certify  and  report 
that,  having  been  attended  by  the  counsel  for  the  respective 
parties,  and  having  looked  into  such  bill  and  answer  and  the  ex- 
ceptions taken  thereto,  and  having  duly  considered  the  same,  I 
find  that  the  second  and  fourth  exceptions  to  said  answer  are 
well  taken,  and  that  the  first,  third,  and  fifth  exceptions  are  not 
well  taken. 

All  of  which  is  respectfully  submitted. 

G.  F., 
Master  in  Chancery. 

Dated ,  1902. 

64A.  Motion  to  Strike  out  for  Insupfiency. 

(In  the  Federal  Courts.) 

(Title  of  court  and  of  cause.) 

x\nd  now  comes  A.  B.  by  E.  F.,  his  solicitor,  and  moves  and 
prays  the  court  to  strike  out  of  the  answer  for  insufficiency,  the 
following: 

Beginning  with  the  word on  the  second  line  of  page 

3  of  said  answer,  strike  out  all  matter  to  and  including  the 

word on  line  4  of  page  7  of  said  answer,  because  said 

matter  is  wholly  insufficient  to  constitute  any  affirmative 
defense  (or  set-off  or  counter  claim)  as  against  the  claims  of 
this  plaintiff,  for  the  reason  that  (here  state  the  nature  of  the 
defects  or  omissions  in  the  part  of  the  answer  to  he  stricken). 


FORMS   OF   BILL  165 

And  said  A.  B.  further  moves  and  prays  the  court  to  strike 
out  for  insufficienej^  the  following: 
Beginning  with  the  word,  etc, 

65.  Order  for  Further  Answer,  on  Master's  Report. 

(Title  of  court  and  cause.) 

The  answer  of  the  defendant,  C.  D.,  having  been  reported  in- 
sufficient in  the  matters  of  the  second  and  fourth  exceptions 
taken  thereto,  by  G.  F.,  the  master  to  whom  the  exceptions  of 
the  complainant  to  such  answer  were  referred,  and  the  excep- 
tions of  the  said  defendant,  C.  D.,  to  said  master's  report  hav- 
ing come  on  to  be  heard,  and,  after  due  consideration  by  the 
court,  having  been  overruled,  on  motion  of  J.  E.,  solicitor  for  the 
complainant, 

It  is  ordered  that  the  said  defendant,  C.  D.,  put  in  a  further 
answer  to  the  matters  of  the  said  second  and  fourth  exceptions 
within  ten  days  from  the  entry  of  this  order. 

66.  General  Replication. 

(Title  of  court  and  cause.) 

The  replication  of  A.  B.,  complainant,  to  the  answer  (or,  plea) 
of  C.  D.,  defendant. 

This  repliant,  saving  and  reserving  unto  himself  all  and  any 
manner  of  advantage  of  exception  to  the  manifold  insufficiencies 
of  the  said  answer,  for  replication  thereunto,  says :  That  he  will 
aver  and  prove  his  said  bill  to  be  true,  certain  and  sufficient-  in 
law  to  be  answered  unto;  and  that  the  said  answer  of  the  de- 
fendant is  uncertain,  untrue  and  insufficient  to  be  replied  unto 
by  this  repliant;  without  this,  that  any  other  matter  or  thing 
whatsoever  in  the  said  answer  contained,  material  or  effectual 
in  law  to  be  replied  unto,  confessed  and  avoided,  traversed  or 
denied,  is  true,  all  which  matters  and  things  this  repliant  is  and 
will  be  ready  to  aver  and  prove  as  this  honorable  court  shall  di- 
rect, and  humbly  prays  as  in  and  by  his  said  bill  he  has  already 
prayed. 


Solicitor  for  Complainant. 
The  replication  may  be  signed  by  either  the  complainant  or 
the  solicitor  (1  Barb.  250). 

67.  Notice  of  Motion  With  Proof  or  Admission 

OF  Service. 

(Title  of  court  and  cause.) 

To ,  solicitor  for  said  defendant,  : 

You  are  hereby  notified  that  on ,  the ,  day 

of ,  A.  D ,  at  . .  o'clock,  or  as  soon  thereafter 


166  EQUITY    PLEADING    AND   PRACTICE 

as  counsel   can   be  heard,   we   shall,   before   his   honor.   Judge 

,  in  the  room  occupied  by  him  as  a  court  room  in  the 

building,  move  that  (specify  the  object  of  the  ynotion), 

and  for  such  other  order  or  relief  as  the  court  may  think  proper 
to  grant  (which  motion  will  be  founded  on  affidavits,  with  copies 
of  which  you  are  herewitli  served  and  on  the  bill  and  answer 
filed  in  this  cause),  at  which  time  and  place  you  may  appear  if 
vou  see  fit. 

Dated, ,  A.  D.  19... 

Yours,  etc., 


State  of   ,  , 


:\ 


Solicitors  for  Complainant. 


County  of  . . 

,  being  first  duly  sworn,  deposes  and  says  that  he 

served  the  within  notice  (and  affidavits  therein  referred  to),  on 

,  defendant  in  the  above-entitled  cause,  by  leaving  true 

copies  of  the  same  with  him  (or  upon  ,  defendant  in 

the  above-entitled  cause,  by  leaving  true  copies  of  the  same  with 
.........  his  solicitor ;  or  upon ,  defendant  in  the  above- 
entitled  cause,  by  leaving  true  copies  of  the  same  with , 

a  person  in  charge  of  the  office  of ,  the  solicitor  for  the 

said  ,  in  the  absence  of  the  said   ,  from  said 

office)  on  the day  of ,  A.  D.  19 . . ,  at  the  hour 

of  And  further  affiant  saith  not. 

G.  H. 
Subscribed  and  sworn  to  before  me  this 

day  of ,  A.  D.  19.. 


Notary  Public. 

If  the  party  upon  whom  notice  is  served  admits  receipt  of  a 
copy,  the  affidavit  may  be  dispensed  with,  and  the  following 
form  used : 

Received  a  copy  of  the  within  notice  (and  affidavits  therein 
referred  to)  this day  of ,  A.  D.  19. .. 


Solicitor  for  Defendant, 


If  service  of  the  notice  is  accepted,  the  following  form  may  be 
used: 

Due  and  sufficient  service  of  the  within  notice  and  affidavits 

therein  referred  to  is  accepted  this day  of  , 

A.  D.  19. . 

C.  D.,  Defendant, 
By  L.  M.,  His  Solicitor. 


forms  of  bill  167 

68.  Affidavit  Accompanying  Motion. 

State  of   .... 
County  of  . . . 

In  the Court  of , Term,  A.  D. 


'  I  ss. 


Complainant, 

V. 


Defendant. 


Gen.  No. 
Term  No. 


Affidavit  of  N.  O.  P. 

N.  O.  P.,  being  first  duly  sworn,  on  oath  deposes  and  says 
that  (here  state  the  facts  which  are  to  he  set  up  hy  the  affidavit). 
And  further  deponent  saith  not. 


Subscribed  and  sworn  to  before  me  this 
day  of ,  A.  D 


Notary  Public. 
(Notarial  Seal.) 

69.  Petition  for  Production  and  Inspec- 

tion op  Papers. 

(Title  of  court  and  cause.) 
(Address  to  the  court.) 

The  petition  of  the  above  complainant  respectfully  shows  that 
the  answer  of  the  defendant  C.  D.  has  been  put  in  in  this 
cause,  and  a  replication  thereto  has  been  filed,  but  that  no  testi- 
mony has  been  taken  in  the  cause,  nor  has  the  same  been  noticed 
for  hearing;  that  by  the  answer  of  the  said  defendant  he  ad- 
mits that  he  is  in  possession  of  divers  books,  (or  deeds,  letters, 
accounts,  and  other  papers)  relating  to  the  matters  at  issue  in 
this  cause  described  as  follows:  (description);  that  your  peti- 
tioner has  a  direct  and  immediate  interest  in  the  said  books, 
(deeds,  and  other  papers),  as  follows:  (describe  interest  in  hooks 
or  papers),  and  an  inspection  thereof  is  necessary  to  enable  him 
to  examine  witnesses  in  this  cause,  and  to  prepare  such  cause  for 
hearing. 

Your  petitioner  therefore  prays  that  the  said  defendant  may 
be  ordered  to  produce  to  and  leave  with  the  clerk  of  this  court 
the  books,  (deeds,  and  other  papers)  above  mentioned,  and  that 
your  petitioner,  his  solicitor,  agent,  or  counsel,  may  be  at  liberty 
to  inspect  and  peruse  the  same,  and  to  take  copies  thereof  or 
extracts  therefrom,  as  he  may  be  advised. 

> 

Petitioner. 


168  EQUITY   TLEADING    AND   PRACTICE 

I,  ,  the  said  petitioner,  depose  and  say  that  I  have 

read  the  foregoing  petition  by  me  subscribed  and  the  same  is 
true  in  substance  and  in  fact. 


Subscribed  and  sworn  to  before  me  this 
day  of ,  A.  D.  19... 


Notary  Public. 

70.  Order  for  Production  by  Defendant, 

(TiUc  of  court  and  cause.) 

On  reading  and  filing  the  petition  of  the  complainant  in  this 
cause,  duly  verified  (and  on  reading  and  filing  due  proof  of  the 
service  of  notice  of  this  motion),  and  on  motion  of ,  so- 
licitor for  said  complainant,  in  support  of  the  same,  and  on 

hearing in  opposition  thereto  (or,  no  one  appearing  to 

oppose), 

It  is  ordered  that  the  defendant, ,  do,  within 

days  from  the  date  of  this  order,  produce  before  and  leave  with 
the  clerk  or of  this  court  the  books,  deeds,  letters,  ac- 
counts, and  other  papers  relating  to  the  matters  at  issue  in  this 
cause,  which  are  admitted  by  the  said  defendant's  answer  to  be 
in  his  possession,  and  that  the  complainant,  his  solicitor,  agent, 
or  counsel,  may  be  at  liberty  to  inspect  and  peruse  the  same,  and 
to  take  copies  thereof  or  extracts  therefrom,  as  he  may  be  ad- 
vised, at  his  own  expense,  but  that  the  said  defendant  be  at 
liberty  to  seal  up  such  parts  of  the  said  books,  deeds,  etc.,  as  he 
shall  make  oath  do  not  in  any  manner  relate  to  the  matters  in 
controversy  in  this  suit. 

71.  Order  for  Production  of  Papers  by 

Complainant. 

(Title  of  court  and  cause.) 

On  reading  and  filing  the  petition  of  the  defendant, , 

duly  verified,  praying  for  the  production  and  inspection  of  the 
certain  promissory  note  therein  mentioned  before  he  shall   be 

compelled  to  answer  the  bill  in  this  cause,  and  on  hearing 

in  support  of  such  petition,  and in  opposition  thereto, 

It  is  ordered  that  the  complainant  do,  within days, 

leave  with  the  clerk  of  this  court  the  certain  promissory  note  or 
instrument  in  writing  mentioned  in  his  bill  to  bear  date   the 

day  of ,  A.  D ,  and  alleged  therein 

to  have  been  given  by  to   ,  for  assuring  the 

payment  of  the  sum  of dollars,  days  after  such  date, 

and  that  the  said  defendant  have days'  time  to  answer 

said  bill  after  the  said  note  or  instrument  shall  have  been  so 
produced. 


forms  op  bill  169 

72.  Petition  for  Leave  to  Amend. 

(Title  of  court  and  cause,  and  address  to  the  court.) 

The  petition  of  the  above-named  complainant  respectfully 
shows  that  the  defendant  in  this  cause  has  caused  his  appear- 
ance to  be  entered  therein,  and  has  put  in  his  answer  to  the  bill 
of  complaint,  and  that  your  petitioner  has  filed  a  replication,  but 
no  witnesses  have  been  examined  by  either  party;  that  since  the 
filing  of  said  replication  your  petitioner  has  been  advised  by  his 
counsel,  and  believes,  that  it  is  essential  to  the  rights  of  your 
petitioner  in  this  cause  that  the  bill  herein  should  be  amended 
by  adding  thereto  the  following  statements :  (Insert  matter  pro- 
posed to  he  introduced.) 

And  your  petitioner  further  shows  that  he  had  no  knowledge 
of  the  facts  above  stated,  nor  was  he  aware  of  the  necessity  of 
inserting  them  in  his  bill,  until  after  the  said  replication  was 
filed. 

Your  petitioner  therefore  prays  that  he  may  be  at  liberty  to 
withdraw  his  said  replication  and  amend  his  bill  by  adding 
parties  defendant  or  otherwise,  as  he  shall  be  advised,  on  pay- 
ment of  costs. 


Petitioner. 

73.       Petition  to  Amend  Bill  by  Adding  a  Defendant. 

(Title  of  court  and  cause,  and  address  to  the  court.) 

The   petition   of  the   above-named   complainant   respectfully 
shows  that  your  petitioner  filed  his  bill  in  this  honorable  court, 

against  the  defendant,  on  the  day  of ,  A.  D. 

,  to  which  the  defendant  has  appeared  and  put  in  his 

answer,  upon  which  your  petitioner  is  advised  to  make 

a  party  to  this  cause,  and  to  bring  him  before  the  court  as  a  de- 
fendant to  the  suit. 

Your  petitioner  therefore  prays  that  he  may  have  leave  to 

amend  his  bill  by  adding  the  said    as  a  defendant 

thereto,  with  apt  words  to  charge  him. 


Petitioner. 

74.  Amendments  to  Bill, 

(Title  of  court  and  cause.) 

Amendments  to  the  bill  of  complaint  in  the  above-entitled 

cause,  made  pursuant  to  an  order  of  court  dated  the   

day  of ,  A.  D 

First.  In  the  third  line  of  the  second  page  of  the  bill,  after 
the  w^rd  "testator,"  interline  "to-wit,  on  or  about  the  5th  day 
of  June,  1902." 


170  EQUITY    PLRiiDING    AND   PRACTICE 

Second.  After  the  word  "satisfaction"  in  the  tenth  line  of 
the  fourth  page,  strike  out  the  words  (here  insert  the  ivords  to 
he  stricken  out),  and  in  lieu  thereof  insert  the  following:  (Here 
insert  the  words  to  he  inserted.) 

Third.     Strike  the  names  of   and   out  of 

the  seventh  line  of  the  fourth  page. 

CD., 
Complainant. 
E.  F., 

Solicitor  for  Complainant. 
(Add  verification  if  necessary.) 

75.  Order  Granting  Leave  to  File  Amend- 

ment TO  Bill. 

(Title  of  court  and  cause.) 

This  cause  coming  on  this  day  to  be  heard  on  the  verified  pe- 
tition  of    ,   complainant   in   the   above-entitled  cause, 

praying  that  leave  be  granted  to  amend  the  bill,  of  complaint  in 
the  above-entitled  cause,  as  specifically  set  forth  in  said  petition, 

and  the  defendant  being  present  in  open  court  by ,  his 

solicitor,  and  the  court  being  fully  advised  in  the  premises, 

It  is  ordered  by  the  court  that  leave  be,  and  the  same  is 
hereby,  given  to  said  complainant  to  amend  his  bill  of  complaint 
in  the  above-entitled  cause  by  filing  a  copy  of  said  proposed 
amendments  attached  to  said  petition  for  such  leave. 

76.  Order  op  Reference  to  Take  Proofs  and  to 

Report  Same  Together  With  Conclu- 
sions of  Fact  and  of  Law 
Thereon. 

(Title  of  court  and  cause.) 

This  cause  coming  on  to  be  heard  upon  motion  of  , 

solicitor  for  :  upon  consideration  thereof. 

It  is  ordered  that  this  cause  be  and  hereby  stands  referred  to 

a  master  in  chancery  of  this  court,  to  take  the  evidence 

according  to  law  and  to  report  the  evidence  to  this  court,  to- 
gether with  his  conclusions  of  fact  and  of  law  thereupon,  withi 
all  reasonable  speed;  to  examine  the  questions  in  issue  in  this 
cause  and  report  his  conclusions  thereon;  to  report  his  conclu- 
sions as  to  whether  the  evidence  and  pleadings  entitle  the 
complainant  or  other  parties  to  the  relief  or  any  part  thereof 
prayed  for  in  their  respective  pleadings,  or  to  any  other  relief; 
and  to  perforjn  all  such  other  lawful  services  as  may  be  neces- 
sary or  proper  under  the  premises.  And  for  the  better  taking  of 
tlie  evidence  all  parties  not  in  default  shall  introduce  their  evi- 
dence before  said  master  with  all  reasonable  speed,  and  shall  pro- 
duce before  him  all  books  anti  writings  in  their  possession  or 


FORMS   OF    BILL  171 

power  which  contain  evidence  pertinent  to  the  issues  and  mat- 
ters in  reference ;  and  said  master  is  hereby  authorized  and  di- 
rected to  cause  to  come  and  be  produced  before  him  according 
to  law,  all  proper  witnesses  and  books  and  writings  requested 
by  the  parties. 
Dated  this day  of 19 . . . 

,  J  udge. 

77.  Order  of  Reference  to  State  Account. 

(Title  of  cause  and  of  court.) 

This  cause  coming  on  for  further  hearing  upon  the  bill  of 
complaint,  the  answer  of  the  defendant  to  said  bill,  the  replica- 
tion of  the  complainant  thereto,  and  the  testimony  taken  and 
reported  by  the  master  in  chancery  under  a  former  order  of  the 
court,  and  the  court  having  heard  the  arguments  of  counsel  for 
the  respective  parties,  and  being  fully  advised  in  the  premises, 
doth  find,  etc.  (here  insert  the  findings  of  the  court  as  to  th^ 
facts  and  the  rights  of  the  parties  and  the  rule  adopted  in  stat- 
ing the  account).  And  in  further  consideration  of  the  premises, 
it  is  ordered  that  this  cause  be  again  referred  to  the  master  in 
chancery  of  this  court,  to  take  the  books  of  account  and  all 
papers  referred  to  in  the  pleadings  and  report  herein  heretofore 
filed,  and  state  the  accounts  between  said  parties,  taking  and  re- 
porting such  evidence,  if  any,  as  may  be  further  offered  by  either 
of  the  parties  to  this  suit,  outside  of  the  said  books  of  account, 
documents,  etc.,  and  report  the  said  evidence  and  statement  of 
account  to  the  court  as  soon  as  practicable,  together  with  his 
conclusions  of  fact  and  of  law  thereon.  And  for  the  better  tak- 
ing of  such  evidence  and  stating  such  account,  the  master  shall 
cause  such  witnesses  as  the  parties  may  desire  to  appear  and 
give  evidence  before  him,  and  shall  cause  the  parties,  or  either 
of  them,  to  produce  before  him  upon  oath,  all  such  deeds,  books^ 
papers  and  \vritings  in  their  possession  or  power,  containing  evi- 
dence pertinent  to  the  issues  and  matters  in  reference,  as  may 
be  proper  and  as  may  be  desired  by  the  parties;  and  said  wLt- 
nesses  are  to  be  examined  upon  oral  or  written  interrogatories 
as  the  master  shall  direct. 

Dated  this day  of 19 . . . 

,  Judge. 

78.  Order  of  Reference  as  to  Alimony, 

(Title  of  court  and  cause.) 

It  is  ordered  that  the  said  defendant  pay  to  the  said  com- 
plainant, or  her  solicitor,  the  sum  of  $100,  in  and  towards  de- 
fraying the  costs  and  expenses  of  this  suit,  and  that  execution 
may  issue  therefor. 


172  EQUITY   I'LEADIXG    AND   PRACTICE 

It  is  further  ordered  that  this  cause  be  referred  to , 

one  of  the  masters  in  chancery  of  this  court,  to  take  evidence  and 
report  his  conclusion  as  to  what  would  be  a  reasonable  sum  to  be 
allowed  for  the  siipport  of  the  said  complainant  during  this  suit, 
and  also  for  the  support  during  this  suit,  of  the  children  of  the 
marriage  now  in  her  custody  and  charge. 

It  is  further  ordered  that  said  master  report  his  recommenda- 
tion as  to  the  times  and  manner  in  which  the  said  sums  should 
be  paid  to  the  complainant. 

Dated  this day  of ,  19  . . 

,  Judge. 

79.  Master's  Notice  of  Day  for  Evidence.  < 

To 

Please  take  notice,  that  by  virtue  of  an  order  of  reference 

entered  in  the  above  entitled  cause,  on  the    day  of 

,  19..,  I  will,  at  ten  o'clock  in  the  morning,  on  the 

day  of  ,  19 .  . ,  at  my  office,  room   , 

street,  in ,  in  said  county,  fix  a  day  to  pro- 
ceed with  the  taking  of  testimony  or  evidence  on  such  refer- 
ence ;  and  on  the  day  so  fixed  I  shall  proceed  with  the  taking  of 
such  testimony  or  evidence. 

,  the day  of  ,  19.  . 

(Signed)      

"Master  in  Chancery  of  the Court  of County, 


f 
80.  Master's  Subpcena  Duces  Tecum.  ^ 

State  of   ,  I 

County  of  |  ^^• 

In  the  name  of  the  people  of  the  state  of 

To t 


You  are  hereby  commanded  to  appear  before  me,  at  my  office, 

No street,  in  the  city  of   ,  said  county,  on 

the day  of A.  D.  19. .,  at 

o'clock  . .  M.,  then  and  there  to  testify  the  truth  in  a  suit  where- 
in   ,  complainant,  and ,  defendant,  and  bring  with 

you  and  then  and  there  produce  a  certain  (hook  or  writing,  give 
description  of  same)  and  all  other  books  or  writings  which  con- 
tain evidence  pertinent  to  the  issues  in  said  cause ;  and  this  you 
shall  in  no  wise  omit,  under  the  penalty  of  the  law. 

Given  under  my  hand  and  seal,  this day  of • 

A.  D.  19...  * 


Master  in  Chancery  of  the Court  of County. 


forms  op  bill  173 

81.  Affidavit  of  Service  of  Writ, 

State  of   .... 
County  of  . . . 

,  being  duly  sworn,  on  oath,  says  that  he  served  the 

within  writ  by  reading  the  same  to  and  leaving  a  copy  thereof 

with   being  the   within  named   ,  on 

the day  of ,  19 . . ,  in  said 


■'  I  ss. 


Sworn  to  before  me  this 

day  of ,  19 

(Seal)  

Fees: 

Mileage  $   

Service  $   

Total      $  

Note:  For  a  witness  subpoena,  omit  the  part  referring  to 
bringing  books  and  papers. 

82,  Master's  Report  op  E>vtdence  and  Conclu- 

sions of  Fact  and  Law  Thereon. 

(Title  of  court  and  cause,  and  address  to  the  court.) 
Report  of ,  Master  in  Chancery. 

Pursuant  to  an  order  of  reference  heretofore  entered  herein, 
I,  the  said  master,  do  certify  and  report  as  follows : 

That  upon  due  notice  to  all  the  parties  hereto,  and  in  due 
form  of  law,  and  having  caused  to  come  before  me  and  be  pro- 
duced all  such  witnesses  and  books  and  writings  as  the  respec- 
tive parties  desired  and  made  known  to  me ;  witnesses  were  duly 
sworn  and  testified,  evidence  was  heard  and  received,  and  pro- 
ceedings were  had  as  more  fully  appears  from  the  record  and 
transcript  of  proceedings  and  evidence  annexed  as  a  part  of 
this  report,  which  said  record  and  transcript,  together  with  the 
exhibits  therein  mentioned,  (and  together  with  such  depositions, 
affidavits  and  other  documents  as  were  lawfully  filed  in  said 
cause  and  were  produced  before  me  as  evidence),  contains  all 
the  evidence  submitted  before  said  master,  in  said  cause.  And 
from  the  competent  evidence  so  submitted  and  from  the  con- 
fessions and  admissions  expressed  and  implied  in  and  by  the 
pleadings  in  said  cause,  said  master  finds  the  following  matters 
of  fact  to  be  true :  (Here  set  forth  the  conclusions  of  fact  found 
by  the  master.) 

Upon  the  facts  aforesaid,  and  from  the  pleadings  filed  in 
said  cause,  the  said  master  finds  the  following  conclusions  of 


174  EQUITY    TLE-VDING    AND   PEACTICE 

law:  (Here  set  forth  the  conclusions  of  law  found  by  the 
tnastcr.) 

Said  master  therefore,  upon  the  findings  of  fact  and  of  law 
aforesaid,  concludes  that  the  equities  of  this  cause  are  with  the 
complainant,  and  that  he  is  entitled  to  the  relief  prayed  for  in 
his  bill,  except  as  otherwise  found  herein. 

All  of  which  is  respectfully  submitted. 

Dated  this day  of ,  A.  D.  19. . 


Master  in  Chancery  of  the Court  of County, 


(Then  annexed  to  the  report  follows  the  report,  record  and 
transcript  of  evidence.) 

83.  Master's  Keport  of  Evidence. 

State  of   . 
County  of 


ss. 

In  the Court.    In  Chancery. 

Adams  et  al.     ] 

V.  \    Gen.  No.  12,860. 

Brown   et  al.     J 

Report,  record,  and  certificate  of  proceedings  and  evidence  in 

the  above  entitled  cause  had  and  taken  before ,  master 

in  chancery  of  said  court  in  his  ofSce,  suite   ,  street, 

,  on ,  19 .  . ,  at o  'clock  . . .  . ,  pursuant 

to  an  order  of  reference  heretofore  entered : 

Present ,  Esq.,  representing  the  complainant ; , 

Esq.,  representing 

Mr :     "I  now  file  with  the  master  a  copy  of  the 

notice   for   this   hearing  showing  signed   receipt  of  notice  by 

and  proving  by  affidavit  delivery  of  notice  to 

I  also  file  with  the  master,  the  master's  writ  of  subpoena  with  the 

endorsement  showing  lav*'ful  service  of  same  on   and 

to  testify  at  this  meeting. ' ' 

Master:    Let  them  be  stamped  and  placed  on  file. 

Whereupon  Mr called   as  a  witness,  who 

after  being  duly  sworn  by  the  master,  testified  as  follows : 

Mr :     State  your  name,  residence  and  occupation. 

A. — John  Armstrong,  753  West  IMonroe  St.,  Cliicago,  shoe  mer- 
chant, etc.,  etc.  (Here  follows  the  testimony  in  the  form  of 
question  and  answer). 

Whereupon : 

Mr.  H.  W.  Rice,  of  Rice  and  Carter : 

If  you  are  through  with  the  direct  examination,  I  will  ask  Mr. 
Armstrong  a  few  questions  upon  cross-examination: 

Q. — Mr.  Armstrong,  please  state  who  was  present  when  the 


FORMS   OF   BILL  175 

contract  marked  exhibit  "D,"  which  I  hand  you,  was  signed? 
A. — Mr.  Carter,  ]\Ir.  Brown  and  myself. 

Etc.,  etc.     (Here  follows  cross-examination,  and  then  follows 
the  re-direct  examination.) 

(Signed)     John  Armstrong. 

Subscribed  and  sworn  to  before  me  this  20th  day  of  June,  1905. 


Master  in  Chancery  of  the Court  of County, 

(Seal)* 

Whereupon  Mr called as  a  witness,  who, 

after  being  duly  sworn  by  the  master,  testified  as  follows : 

Mr :    State  your  name,  residence  and  occupation. 

Etc.,  etc. 

(Signed  and  sworn  to  as  above.) 


84.  Master's  Certificate  of  Evidence.    At  the 

End  of  His  Report  of  Evidence. 

I,    ,  master  in  chancery   of  the    court  of 

county,   ,  do  hereby  certify  that  each 

of  the  witnesses  aforesaid,  before  testifying,  was  by  me  first 
duly  sworn  or  affirmed  according  to  law,  to  testify  and  speak  the 
truth,  the  whole  truth,  and  nothing  but  the  truth,  in  relation  to 
the  matters  in  reference  and  in  answering  all  questions  put  to 
them ;  that  the  testimony  of  each  of  them  was  reduced  to  writing, 
and,  after  being  read  over  by  each  of  them,  the  same  was  duly 
subscribed  and  sworn  to  or  affirmed  by  each  of  said  witnesses, 
as  shown  by  the  several  jurats  thereto  attached;  and,  where  no 
such  signatures  and  jurats  or  affirmations  appear,  the  signa- 
tures and  jurats  or  affirmations  thereto  were  waived  by  all  the 
parties. 

And  I  further  certify  that  the  foregoing  record  and  transcript 
of  the  evidence  of  said  witnesses,  together  with  the  exhibits  here- 
inbefore referred  to  and  attached,  is  a  full,  complete  and  true 
transcript  of  all  the  proceedings  and  evidence  taken  before  me 
in  said  cause. 

Dated  this day  of ,  A.  D.  19. . 


Master  in  Chancery  of  the Court  of County, 

State  of 


176  equity  pleading  and  practrce 

85.                       Master's  Certificate  op  Fees. 
State  of   


County  of 

In  the Court.    In  Chancery. 

Gen.  No 

V. I 


master's  certificate  op  services,  pees  and  charges 

I  hereby  certify  that  I  performed  the  following  items  of  serv- 
ices and  necessarily  made  the  following  expenditures  under  the 
special  order  of  reference  heretofore  catered  in  the  above  en- 
titled cause,  and  that  such  services  necessarily  consumed  the 
following  amounts  of  my  time : 

PEES   fixed   by   statute. 

I  have  taken  and  reported folios  of  100  words  each, 

at  15  cents, $ 

I  hereby  certify  that  a  stenographer  was  necessarily  employed 

and  that  said  stenographer   reported    folios   of   100 

words  each $ 

FEES  TO  BE  ALLOW^ED  BY  COURT. 

(1)  Time  spent  by  master  in  hearing  and  granting  mo- 
tions for  continuance  by  complainant,   hours'  time  at 

$ per  hour ,  $ 


(2)  Time    spent    days,    at    $ per    day, 

hours,  at  $ per  hour,  in  hearing  arguments, 

by  complainant, $ 

(3)  After  the  report  was  made,  time  spent  days, 

at  $ per  day, hours,  at  $ .  . per  hour,  in 

hearing  and  considering  objections  by  defendant  to  the  report 
herein, $ 

(4)  Time  spent days,  at  $ per  day, 

hours,  at  $ per  hour,  in  reading  briefs  and  authorities 

presented,  in  determining  and  formulating  findings  of  fact,  and 
in  determining  and  formulating  conclusions  of  law,  and  in  draft- 
ing the  report  herein, 

I  respectfully  ask  the  court  to  allow,  tax  and  fix  the  above 
charges,  or  such  other  amounts  as  to  the  court  may  seem  proper. 
Dated,  this day  of ,  191 


Master  in  Chancery  of  the Court  of County, 


FORMS  OF   BILL  177 

The  above  charges  and  amounts  are  hereby  allowed,  taxed  and 
fixed  as  costs,  as  and  for  the  master's  fees  and  charges  under  the 
order  of  reference  herein. 


Judge. 

86.  Order  Directing  Master's  Fee  to  be  Paid. 

(Title  of  court  and  cause.) 

And  now  comes    ,  the  master  to  whom  this  cause 

stands  referred, ,  and  it  appearing  to  the  court  that  due 

notice  has  been  given  to  the  solicitors  of  complainant  and  de- 
fendant herein,  on  motion  of  said  master. 

It  is  hereby  ordered,  adjudged  and  decreed  that  complainant 
A.  and  defendant  B.  are  each  primarily  liable  to  advance  and 
pa}^  to  said  master  one-half  of  his  fees  and  charges,  totaling 
to  $ ,  heretofore  allowed  and  taxed,  and  said  complain- 
ant and  said  defendant  are  hereby  ordered  to  pay  to  said 
master  within  five  days  the  sums  primarily  due  from  them  to 
said  master  as  aforesaid,  and  this  without  prejudice  to  the  final 
awarding  of  costs  herein.  If  either  of  said  parties  fails  to  pay 
his  respective  share  according  to  this  order  within  five  days,  the 
other  party  may  advance  the  defaulting  party's  share;  where- 
upon, and  in  case  both  parties  default  in  respect  to  this  order, 
the  court  will  enter  such  further  order  and  decree  as  may  be 
just  and  proper  under  the  circumstances. 

Dated  tliis day  of ,  19 . . 


Judge. 

87.  Plan  of  Master's  Foreclosure  Report. 

1.  Examine  pleadings  to  see  if  bill  is  traversed. 

2.  Examine  summons  and  returns  therein  for  parties  actually 
subject  to  the  court's  jurisdiction  for  correct  caption  of  report. 

3.  Study  testimony  and  examine  exhibits. 

4.  Dictate  report — finding  as  facts  only  things  proved  by 
testimony  or  exhibits;  facts  not  proved  before  master  but  con- 
fessed by  default,  can  be  included  in  "i"  herein. 

(a)  Find  facts  as  to  note  and  interest  notes  as  alleged  in 
bill ;  if  bill  is  slovenly  drawn,  find  facts  from  original  note. 

(b)  Find  facts  as  to  execution,  delivery,  acknowledgment 
and  recording  of  trust  deed,  as  alleged  in  bill ;  if  bill  is  slovenly 
drawn,  from  original  trust  deed  or  mortgage. 

(c)  Find  facts  as  to  provisions  of  trust  deed,  either  as  alleged 
in  bill,  or  quote  from  the  trust  deed.  If  quoted,  preface  the  fol- 
lowing form: 

E.  P.— 12 


178  EQUITY   PLEADING   AND   PRACTICE 

Tliat  said  trust  deed  among  other  things  contains  the  follow- 
ing words,  figures  and  provisions : 


Always  state  provision  as  to  release  and  waiver  of  homestead ; 
tlie  bill  ofton  omits  this.  The  provisions  of  the  trust  deed  cited 
should  oite  from  the  T.  D.,  also  the  covenants,  if  any  are  broken, 
penalties,  if  any  are  incurred,  other  rights,  if  any  are  violated, 
solicitor's  fees,  etc,  and  the  defeasance  clause. 

Note:  In  most  states  a  properly  acknowledged  conveyance 
like  a  trust  deed  or  mortgage  or  certified  copy  there- 
of, is,  without  further  proof  of  execution,  prima  facie  evidence, 
and,  of  itself,  proves  all  facts  under  a,  b  and  c,  above.  (111. 
Stat.  Conveyances,  Sec.  20).  It  can  be  overcome  upon  proof 
sufficient  to  destroy  this  prima  facie  proof.  (Wolcott  v.  Lake 
View  B.  &  L.,  59  111.  App.  415.) 

(d)  Find  facts  as  to  who  is  the  legal  owner  of  the  principal 
and  interest  notes  at  time  when  bill  was  filed  and  up  to  time  of 
report. 

Note  :  Possession  of  note  and  mortgage  is  strong  presumptive 
evidence  of  ownership. 

(e)  Find  facts  as  to  payments  by  defendant.  Note  and 
mortgage  are  prima  facie  evidence  of  amount  due. 

(f)  Find  facts  as  to  defaults  by  defendant  in  failing  to  com- 
ply with  provisions  of  trust  deed. 

(g)  Find  facts  as  to  expenditures  by  complainant,  for  taxes, 
insurance,  etc.,  etc.,  on  account  of  defaults  therein  by  defendant, 
and  find  as  to  "cash  advanced  for  abstract  continuation  in 
order  to  properly  begin  this  suit,"  and  whether  justified  by  the 
provisions  of  the  trust  deed. 

(h)  "That  there  is  due  from  said to  said on 

account  of  the  provisions  of  said  notes  and  trust  deed  and  on 

account  of  the  foregoing,  the  sum  of  $ as  appears  from 

the  following  items: 

(Make  tabular  statement  of  amounts  due.) 

Principal  note  No.  1  due  Aug.  1,  1908  $ 

Interest  thereon  at per  cent. 

from to 

Interest  note  due  Feb.  1,  1908.  

Interest  thereon  at per  cent, 

from to 

Interest  note  due  Aug.  1,  1907.  

Interest  thereon  at per  cent. 

from to 


POEMS  OF  BILL  179 


Jan.  7,  1908,  cash  advanced  for 

taxes  1906 
Interest  thereon  at per  cent,  from 

Jan.  7,  1908,  to 

Feb.  10,  1908,  cash  advanced 

for  insurance. 
Interest  thereon  at per  cent,  from 

Feb.  10,  1898,  to 

Mar.  7,  1908,  cash  advanced  for 

continuance  of  abstr.  of  title 
Interest  thereon  at per  cent,  from 

Mar.  7,  1908,  to 


Total.     $ 


(Note:  Some  statutes  require  interest  to  be  calculated  ac- 
cording to  the  "six  per  cent  method,"  a  month  being  one- 
twelfth  of  a  year  and  a  day  one-thirtieth  of  a  month.  Ill  Stat. 
"Interest.") 

' '  Also  the  further  sum  of  $ incurred  by  said 

as  his  solicitors'  fees  herein,  which  sum  last  aforesaid  is  the 
sum  expressly  provided  for  in  said  trust  deed,  and  said  master 
finds  the  same  to  be  a  just  and  customary  fee  for  the  services 
rendered  by  complainant's  solicitor  herein;  (or,  if  the  trust 
deed  provides  for  a  'reasonable'  fee,  'which  sum  said  master 
finds  from  the  evidence  to  be  a  reasonable  charge  for  the 
services  performed  by  the  complainant's  solicitor')." 

(i)   Said  master  further  finds  and  concludes  that  in  law  and 

in   fact  said  complainant, has  a  lien  on  the  premises 

aforesaid  for  the  amounts  found  to  be  due  him  as  aforesaid; 
that  each  and  every  material  allegation  in  complainant's  bill, 
except  as  otherwise  found  in  this  report,  is  admitted  by  the 
pleadings  to  be  true  (or)  is  by  default  taken  and  confessed 
as  true  herein;  that  the  equities  in  this  cause  are  wdth  said 

complainant ,    and    that    he    is   entitled    to    the    relief 

prayed  for  in  his  said  bill  so  far  as  the  same  is  consistent  with 
this  report. 

Said  master  therefore  recommends  that  the  usual  and  regular 
decree  of  foreclosure  and  sale  be  entered  herein  in  accordance 
with  this  report. 

Dated  this day  of ,  19 


Master  in  Chancery  of  the Court  of County, 


180  equity  pleading  and  practice 

88.  Plan  of  Master's  Report  of  Building  and 

Loan  Association  Foreclosure. 

Note  carefully  if  evidence  supports  follo\Wng  findings: 

Finding  that ASvSociation  is  a  corporation  organized 

and  daing  business  under  the  law  of ,  that  C.  D.  being 

a   member  of  said  association  and  the  holder   and   owner  of 

shares  of  the  capital  stock  of  said  association,  made, 

executed  and  delivered  his  certain bond  (or  agreement) 

in  "words  and  figures  as  follows":  (quote  bond  in  fuU)  and 
also  executed  and  delivered  the  certain  trust  deed  mentioned 
in  said  bond  at  the  time  and  in  the  manner  as  set  forth  in  com- 
plainant's bill. 

Finding  as  to  acknowledgment  and  recording  of  trust  deed. 

That  the  trust  deed,  mentioned  in  said  bond,  among  other 
things  contains  the  following  words  and  figures:  (qiwte  coven- 
ants, penalties  and  rights  in  question,  also  defeasance  clause, 
release  and  waiver  of  homestead  clause,  solicitor's  fee  clause, 
other  expenses  clause,  etc.) 

That ,  at  the  time  of  filing  the  bill  herein  and  up  to 

this  day  was  and  is  the  legal  holder  and  owner  of  said  bond. 

That  said  C.  D.  made  the  payments  mentioned  in  said  bond 

until  the day  of 19     ;  that  the  amount  of  dues 

paid  on  his  shares  of  stock  is  $ ;  that  said  C.  D.  made 

default  in  the  payment  of  the  certain  installment  of  dues,  inter- 
est and  premium  aforesaid,  which  became  due  on  the 

day  of and  in  said  default  continues  to  this  day. 

That  on  the day  of .said  association  through 

its  board  or  directors  duly  passed  a  resolution  in  words  and 
figures  as  follows: 

("Quote  resolution  declaring  default  and  amount  due,  for-' 
feiture  of  stock,  and  authorizing  suit.) 

That  between  (give  date)  the  last  day  C.  D,  paid  money  as 

aforesaid  and    (give  date  of  resolution)    (give 

number)  installments  of  premium  and  of  interest  became  due 
to  said  association  from  C.  D. 

Find  facts  as  to  defaults  in  the  payment  of  taxes,  and 
amounts,  with  dates,  paid  therefor  by  complainant  association. 

Find  facts  as  to  defaults  in  the  payment  of  insurance  and  the 
amounts,  with  dates,  paid  therefor  by  complainant  association. 

If  T.  D.  provides  for  specific  recovery  of  naoney  laid  out  for 
abstract  of  title,  find  that  a  continuation  of  abstract  of  title  was 
necessary  for  purposes  of  this  suit  and  the  amount,  with  date, 
expended  for  abstract  continuation. 

That  the  following  are  the  by-laws  of  said  association  which 
determine  and  govern  the  withdrawal  value  of  the  shares  of 
stock  aforesaid:     (quote  by-laws.) 

That  the  withdrawal  value  of  the  stock  aforesaid  is  $ 


FORMS   OF   BILL  181 

being  $ amount  paid  as  dues  and per  cent,  inter- 
est thereon  according  to  said  by-laws. 

That  the  following  words  and  figures  of  the  by-laws  of  said 
association  determine  and  govern  the  assessment  and  collection 
of  fines  upon  the  capital  stQck  of  members  of  said  association : 
(quote  hy-laws  on  fines,  if  fines  involved  in  c-ause.) 

That  fines  amounting  to  $ were  duly  and  regularly 

assessed  against  said according  to  said  by-laws. 

That  on  the  day  of being  the  day  when 

by  the  resolution  aforesaid  the  stock  aforesaid  owned  by  said 

was  forfeit'cd  and  reverted  to  said  association,   the 

membership  of  said  C.  D.  ceased,  and  a  legal  relation  of  borrower 
and  mortgage  creditor  superseded  the  contract  relation  set 
forth  in  the  bond  and  trust  deed  aforesaid,  and  on  said  last 
mentioned  day  therefore  the  inst.allments  of  interest  and  prem- 
iums falling  due  (quarterly  or  semi-annually,  as  provided  in 
T.  D.)  mentioned  in  said  bond  and  trust  deed,  ceased  to  fall 
due  as  before  (because  of  said  loss  of  membership)  and  only 
the  statutory  rate  of  interest,  5  per  cent.,  can  thenceforward 
be  charged  to  C.  D.  on  the  balance  remaining  due  said  associ- 
ation after  applying  all  credits,  including  the  withdrawal  value 
of  said  stock  on  the  day  last  mentioned. 

That  no  share  of  the  capital  stock  aforesaid  has  matured  or 
reached  the  par  value  of  One  Hundred  Dollars. 

That  there  is  due,  o^ving  and  payable  to  said  association  from 
said  C.  D.  on  account  of  the  bond  and  trust  deed  aforesaid  and 

on  account  of  the  foregoing  the  sum  of  $  as  appears 

from  the  following  items  of  debits  and  credits. 

Debits. 

(Date  of  resolution)    Principal  loan  $ 

"5  Int.  Installments  in 

arrears  

**         *'  "5  Premium  Installments 

in  arrears  

**         "             "     Fines  assessed  as  afore- 
said   

Taxes  

Insurance  


Credits. 

Dues  paid    

Int.  according  to 
by-laws   


Balance  due     $ 
(Date  of  resolution)       Balance  due  $ 


182  EQUITY    PLEADING    AND   PRACTICE 

Interest  thereon  at  5  per  cent,  to  (date  of  report.) 
Also  the  further  sum  of  $200  as  and  for  complainant's  solici- 
tors, etc.,  etc.     (See  plan  of  ordinary  foreclosure  report.) 

Note:  Building  and  Loan  Association  foreclosure  bills  are 
seldom  correctly  drawn.  The  plan  of  the  master's  report  above 
stated  will  serve  to  point  out  what  allegations  the  bill  should 
contain. 

89.  Notice  op  Draft  op  Report. 

(Title  of  Court  and  cause.) 

To ,  solicitor  for  complainant,  and solicitor 

for  defendant : 

Please  take  notice  that  I  have  prepared  a  draft  of  my  report 
in  the  above-entitled  cause,  and  objections  thereto  may  be  filed 

at  my  office  on  or  before ,  the day  of , 

A.  D.  19 .... ,  which  will  be  the  last  day  for  filing  objections 
to  the  same;  and  that  I  shall  hear  argument  on  any  objections 

filed  on ,  A.  D.  19 ,  at  o'clock 

M.,  at  which  time  and  place  you  may  appear  if  you  see  fit. 

Dated , , ,  19 


Master  in  Chancery  of  the court  of County, 

State  of  

90.       Brief  Suggesting  Findings  for  Master's  Report. 

(Title  of  court  and  cause.) 

Before   

Master  in  Chancery 
Brief  of  

Solicitor  for 

*'0n  behalf  of   ,  complainant  (or  defendant)  in  the 

above  entitled  cause,  we  respectfully  contend  that  the  plead- 
ings, proceedings,  orders  of  record,  exhibits  and  evidence,  in 
the  above  entitled  cause,  will  justify  said  master  in  including 
in  his  report,  among  other  findings  of  fact,  the  following: 

"1.  That  (here  state  finding  of  fact  substantially  as  alleged 
i?i  the  pleading,  and  after  the  finding,  cite  all  the  exhibits  or 
pages  containing  evidence  pro  and  con  on  the  finding.) 

"2.     That,  etc. 

"We  further  respectfully  contend  that  upon  the  facts  as 
aforesaid  the  master  should  find  the  following  conclusions  of 
law: 


FORMS  OF  BILL  183 

"1,     That,  etc.     (State  finding  of  law  and  cite  authorities.) 
''Dated  this day  of 


(Signed)     "Solicitors  for  Complainant. 
(Or  Defendant.)" 


91,  Objections  and  Exceptions  to  the  Master's 

Ruling  Upon  Testimony,  Before  the 
Master  Files  His  Report. 


State  of  ,  I  ^^ 

County  of j 


In  the court. 

term,  A.  D.  19 


In  Chancery. 
Gen.  No 


objections  and  exceptions  to  the  master's  ruling 
UPON  evidence. 

And  now  comes    ,   defendant    (or  complainant)    in 

the  above-entitled  cause,  and  brings  before  this  court  the  follow- 
ing objections  and  exceptions  upon  the  following  testimony  and 

evidence  had  and  taken  before  master  in  chancery, ,  to 

whom  this  cause  stands  referred. 

(1)  Test,  page  26:     (Mr.  Williams  examining  W.  F.  Brown, 
for  complainant.) 

Q.     State  in  substance  the  terms  of  this  contract. 

Mr.   R. :     On  behalf  of  the   defendant,    ,   I  object, 

upon  the  ground  that  this  contract,  being  in  writing,  the  writing 
itself  is  the  best  evidence  of  its  terms. 

The  Master:     Let  him  answer. 

Mr.  R. :     Exception. 

(2)  Test,    page    39:     Mr.    Williams    examining    Mrs.    Alice 
Temple,  for  complainant.) 

Q.     Did  he  acquiesce  in  your  proposition? 

Mr.  R. :     I  object  on  behalf  of  defendant,    ,  upon 

the  ground  that  the  question  asks  for  a  conclusion.  The  best 
evidence  is  either  the  contract  in  writing  or  the  actual  language 
used  in  such  parts  of  the  contract  as  were  oral. 

The  Master:     Let  her  answer. 

Mr.  R. :     Exception. 

(3)  Etc 

Wherefore,   said    ,   defendant  in  the   above-entitled 

cause,  prays  the  court  to  consider  said  objections  and  excep- 
tions upon  the  evidence,  and  to  enter  an  order  stating  what 


184  ..  EQUITY   PLEADING  AND   PRACTICE 

objections  and  exceptions,  as  made  on  behalf  of  said  defendant, 
are  allowed,  and  what  objections  and  exceptions  are  overruled, 
and  directinj?  the  master  to  proceed  to  take  such  further  testi- 
mony as  this  court  may  deem  proper,  and  directing  the  master 
to  disrecrard,  in  making  up  his  report,  such  testimony  as  this 
court  may  rule  to  be  incompetent  or  irrelevant,  and  this  de- 
fendant prays  for  such  further  orders  and  directions  as  this 
court  may  deem  proper  to  make. 

Dated  this day  of ,  19 

(Signed)    


Solicitor. 

92.                     Objections  to  Master's  Report. 
State  of  ,  I  gg 


County  of 


In  the  court. 

In  Chancery, 
Gen.  No 


"Now  comes ,  complainant  (or  defendant),  and  ob- 
jects to  the  master's  (first)  draft  of  his  report  in  the  above 
entitled  cause,  dated  the day  of 

"1.  Because  the  master  on  page    of  his  report  has 

found  that  (state  the  finding  of  fact.) 

"Whereas,  said  master  should  have  found  from  the  pleadings 
and  evidence  that  (state  the  finding  of  fact  as  ohjector  thinks  it 
shoidd  he  found). 

"One  ground  of  objection,  among  others,  being  that  (said 
master's  finding  is  contrary  to  the  weight  of  evidence  and  con- 
trary to  confessions  under  the  pleading;  or  state  other  objec- 
tion). We  respectfully  call  the  master's  attention  to  the  fol- 
lowing, being  all  the  pages  of  evidence,  for  the  master's  finding, 
viz. :  pages  27,  31 ;  and  to  the  following,  being  all  the  pages  in 
favor  of  the  finding  above  requester  for  us,  viz.  pages  42,  47,  49. 

"2.  Also  because  the  master  has  omitted  to  find,  anywhere 
in  his  report,  that  (here  state  the  finding  of  fact  which  was 
omitted  by  the  master,  and  which  the  party  ohjeciing  deems  it 
essential  to  his  suit,  for  the  master  to  have  found).  The  ground 
of  objection,  among  others,  being  that  (the  finding  is  material 
to  complainant's  case  and  is  justified  by  the  pleadings  and  th« 
evidence).     See  testimony  pp.  17,  24. 

"3.  Etc. 

"Wherefore,  said  objector  prays  the  master  to  modify  and 
amend  the  said  draft  of  his  report  in  accordance  with  the  ob- 


FORMS   OP   BILL  185 

jections  above  stated,  and  in  accordance  with  the  pleadings, 
proceedings,  orders  of  record,  and  exhibits  and  evidence  intro- 
duced. 

' '  Dated  this day  of 

(Signed)   " 

"Solicitor  for  Complainant 
(or  Defendant)." 

93.  Exceptions  to  Master's  Report. 

(Title  of  court  and  cause.) 

And  now  comes ,  and  in  open  court  makes  and  takes 

the  following  objections  and  exceptions  to  the  report  of 
,  master  in  chancer}^  to  whom  this  cause  stands  re- 
ferred by  an  order  heretofore  made  herein ;  which  report  is 

dated  the day  of ,  A.  D.  19 ,  and  was  filed 

of  record  herein  on  the day  of ,  19 ... . 

(1)  For  that  the  master,  on  page of  his  said  report, 

has  found  that  (here  insert  the  finding  and  ground  of  excep- 
tion), whereas  he  should  have  found  from  the  evidence  and 
pleadings,  that  (here  state  finding  which  should  have  been 
made). 

See  evidence  pages  16,  27,  89. 

(2)  For  that,  etc. 

"VVlierefore,  said ,  excepts  to  said  report,  and  appeals 

to  the  judgment  of  the  court,  and  prays  the  court,  upon  con- 
sideration thereof,  to  enter  an  order  stating  what  exceptions 
are  allowed  and  what  exceptions  are  overruled,  and  either  in 
said  order  making  findings  or  conclusions  other  than  or  addi- 
tional to  those  contained  in  the  report,  or  by  said  order  refer- 
ring the  report  back  to  said  master  directing  him  to  file  a 
new  and  amended  report  and  to  make  the  certain  other  or  ad- 
ditional findings  or  conclusions  specified  by  the  court  in  such 
order,  together  with  such  further  findings  and  conclusions  as 
may  be  consistent  with  those  specified  in  the  order,  and  con- 
sistent with  the  rulings  of  the  court  upon  exceptions  ruled  on 
by  the  court,  and  containing  such  other  directions  as  may  be 
equitable. 

Dated  this day  of ,  19 ... . 

C.  D.,  Defendant. 

G.  F.,  Solicitor  for  Defendant,  C.  D. 

94,  Order  Confirming  Master's  Report. 

(Title  of  court  and  cause.) 

This  cause  coming  on  this  day  to  be  heard  on  the  report  of 

,  one  of  the  masters  in  chancery  of  this  court,  to  whom 

the  above-entitled  cause  was  duly  referred,  which  said  report 
was  filed  in  this  court  on  the day  of ,  A.  D. 


Ici6  '  EQUITY   PLEADING   AJSTD   PRACTICE 

19....,  and  upon  the  exceptions  of  the  defendant,  C.  D.,  to 
said  report,  and  the  complainant  being  present  in  open  court 
by  G.  H.,  his  solicitor,  and  the  defendant  being  present  in  open 
court  by  J.  E.,  his  solicitor,  and  the  court  having  heard  the 
arguments  of  the  solicitors  for  the  respective  parties  in  support 
of  and  against  the  allowance  of  said  exceptions  and  the  con- 
tirraation  of  the  said  report,  and  having  considered  the  same, 
and  being  fully  advised  in  the  premises, 

It  is  ordered  that  the  said  exceptions,  and  each  of  them,  be 
and  the  same  are  hereby  overruled,  and  that  the  said  report 
of  the  said  master  be  and  the  same  is  in  all  things  approved  and 
confirmed. 

95.  Decree  in  Foreclosure  Case.     (Containing 

Order  Confirming  Master's  Report.) 

State  of ,1 

County  of j  **' 

In  the Court.    In  Chancery. 

Gen.  No 

VI 

C.  D.J 

This  day  came  the  complainant  by   ,  solicitor,  and 

the  defendant And  this  cause  coming  on  now 

to  be  heard  upon  the  bill  of  complaint  of heretofore 

taken  as  confessed  by  and  against  the  defendant  (name  of  defend- 
ant's defaulted)  the  answer  of  the  defendant the  answer 

of  the  defendant  by  guardian  ad 

litem,  and  the  complainant's  replication  to  said  answer,  and 

upon  the  report  filed  herein  on  the   day  of  

19 .... ,  and  dated    19 .... ,  of    ,  the  master 

in  chancery  to  whom  this  cause  was,  by  order  of  this  court, 
heretofore  referred  to  take  proofs  herein  and  report  the  same 
to  this  court,  with  his  conclusions  of  fact  and  of  law  upon  the 
evidence;  and  upon  proofs  and  exhibits  herein  made  in  open 

court    On   motion   of  complainant's   solicitor,   it   is 

ordered  that  said  master's  report  be,  and  the  same  is  hereby 
in  all  things  approved  and  confirmed,  including  his  fees  and 
charges,  which  are  hereby  allowed  as  certified  by  the  master, 
and  taxed  as  costs  herein. 

And  the  court,  being  fully  advised  in  the  premises,  finds  that 

the  material  allegations  in  said  bill  of  complaint have 

been  proved  as  in  said  bill  set  forth,  and  are  true,  except  as 
otherwise  found  by  this  decree,  that  the  equities  of  this  cause 
arc  with  the  complainant,  and  that  there  was  and  is  due  to  said 

complainant  (name)    ,  from  (names)    the 

sum  of  ($ )    dollars,  being  the  amount  found 


^  I  FORMS   OF   BILL  187 

due  by  said  master's  report,  as  more  fully  appears  from  the  fol- 
lowing items:  (State  items),  together  with  interest  at  five  per 
cent  per  annum  on  said  total  sum  from  the  date  of  said  master's 

report.     Also  the  further  sum  of  dollars,  as  and  for 

complainant's  solicitor's-  fees  herein 

And  the  court  further  finds  (state  1.  findings  of  fact;  2.  find- 
ings of  law.)  Include  findings  as  to  jurisdiction  over  defend- 
ants and  as  to  which  defendants,  if  any,  are  personally  liable 
to  pay  said  sums. 

It  is  therefore  ordered,   adjudged  and   decreed  that  unless 

the  defendant ,  or  some  of  the  defendants,  within  two 

days  from  the  date  of  the  entry  of  this  decree,  pay  or  cause  to 

be  paid  to  said  complainant  said  sum  of dollars  and 

cents,  with  interest  on  $   (being  said  total 

less  the  said  sum  for  solicitor's  fees)  at  the  rate  of  five  per 
centum  per  annum  from  the  date  of  said  master's  report  to 
the  day  of  such  payment,  and  pay  to  the  officers  of  this  court 
the  taxed  costs  in  this  cause;  that  the  premises  hereinafter  and 
in  said  bill  of  complaint  described,  or  so  much  thereof  as  may 
be  necessary  to  pay  the  amount  so  found  to  be  due  the  com- 
plainant with  interest  thereon,  and  the  costs  aforesaid,  and 
which  may  be  sold  separately  without  material  injury  to  the 
parties  in  interest,  be  sold  at  public  vendue  to  the  highest  and 

best  bidder  for  cash  by ,  a  master  in  chancery  of  this 

court,  at street,  in  the  city  of ,  in  the  county 

and  state  aforesaid ;  that  said  master  give  public  notice  of  the 
time  and  place  and  terms  of  such  sale,  by  publishing  same  at 
least  once  in  each  week  for  three  successive  weeks  in  some  secu- 
lar newspaper  of  general  circulation,  published  in  the 

of ,  county  of and  state  of ,  and  that 

the  complainant,  or  any  of  the  parties  to  this  cause,  may  be- 
come the  purchaser  at  such  sale ;  that  upon  such  sale  being 
made,  said  master  execute  and  deliver  to  the  purchaser  or  pur- 
chasers a  certificate  or  certificates  of  sale,  evidencing  such  pur- 
chase, describing  the  premises  purchased,  the  amount  paid 
therefor,  or  if  purchased  by  the  complainant,  the  amount  of 

bid,  and  the  time  when  such  purchaser  or  purchasers 

will  be  entitled  to  a  deed  for  said  premises,  if  the  same  shall 
not  be  redeemed  according  to  law,  and  that  within  ten  days 
from  such  sale  he  file  a  duplicate  of  such  certificate  or  certifi- 
cates in  the  office  of  the  recorder  of  said county. 

That  said  master,  out  of  the  proceeds  of  said  sale,  retain  his 
fees,  disbursements  and  commissions  according  to  law,  and  pay 
to  the  officers  of  this  court  their  costs  in  this  cause,  including 

$ hereby  taxed  as  costs  for  said  master's  reasonable 

fees  and  charges  under  the  order  of  reference  herein,  and  out 
of  the  remainder  pay  to  the  complainant  the  amount  by  this 
decree  found  to  be  due   with  interest  thereon  at  the 


188  EQUITY   PLEADING   AND   PRACTICE 

rate  of  five  (5)  per  cent  per  annum  from  the  date  of  said 
master's  report  to  the  date  of  such  sale;  and  if  such  remaind-er 
shall  not  be  sufficient  to  pay  said  amount  and  interest,  that  he 
apply  the  same  to  the  extent  to  which  it  may  reach  in  satisfac- 
tion thereof,  and  specify  the  amount  of  the  deficiency  in  his 
rj^port  of  such  sale ;  and  if  said  remainder  shall  be  more  than 
sufficient  to  pay  said  amount  and  interest,  that  he  hold  the 
surplus  subject  to  the  further  order  of  this  cooirt;  and  that  he 
take  receipt  from  the  respective  parties  to  whom  he  may  have 
made  payments  as  aforesaid,  and  file  the  same  with  his  report 
of  said  sale  in  this  cort. 

It  is  further  ordered,  adjudged  and  decreed,  that  upon  the 
expiration  of  the  statutory  periods  of  redemption  after  the  date 
of  such  sale,  if  the  premises  so  sold  shall  not  be  redeemed  ac- 
cording to  law,  the  defendants  and  all  persons  claiming  under 
them,  or  any  of  them,  since  the  commencement  of  this  suit,  be 
forever  barred  and  foreclosed  of  and  from  all  right  and  equity 
of  redemption  or  claim  of,  in  and  to  said  premises  or  any  part 
thereof;  and  in  case  said  premises  shall  not  be  redeemed  as 
aforesaid,  then  upon  the  production  to  the  master,  or  his  succes- 
sor, of  the  said  certificate  or  certificates  of  sale  by  the  legal 
holder  thereof,  said  master  shall  make,  execute  and  deliver  to 
the  legal  holder  of  such  certificate  or  certificates  a  good  and 
sufficient  deed  of  conveyance  of  said  premises;  and  that  there- 
upon the  grantee  or  grantees  in  such  deed,  or  his  or  their  legal 
representatives  or  assigns,  be  let  into  possession  of  said  premises ; 
and  that  any  of  the  parties  to  this  cause  who  shall  be  in  posses- 
sion of  said  premises  or  any  portion  thereof,  or  any  person 
who  may  have  come  into  such  possession  under  them,  or  any  of 
them,  since  the  commencement  of  this  suit,  upon  the  production 
of  said  master's  deed  of  conveyance,  and  a  certified  copy  of  the 
order  of  court  confirming  said  sale,  surrender  possession  of 
said  premises  to  said  grantee  or  grantees,  his  or  their  represen- 
tatives or  assigns. 

The  premises  by  this  decree  authorized  to  be  sold  are  situated 

in  the  of   county  of  and  state  of 

and  described  as  follows,  to- wit : 

Examined  and  approved  by  me  this day  of 

190.. 


Master  in  Chancery  of  said  Court. 
Enter 

Judge. 


forms  of  bill  180 

96.        Memorandum  of  Time  and  Place  of  Sale  and  of 
Cash  Required  of  Complainant  if  He  Bids. 

Sale, at  11  o'clock  A.  M.,  at street. 

State  of    ,  I  ^^ 

County  of   j 

In  the Court.    In  Chancery. 

Gen.  No. 
T.  No. 


decree,  interest  and  costs  op  sale. 

Decree   Debt    $ 

Interest  thereon  at  5%  from  date  of  master's  report  to 

date  of  sale    $ 

Solicitor's   fee    $ 

Taxed  costs  (including  Master's  report,  $ )   $ 

Master's  fees,  disbursements  and  commissions: 

Pr-eparing  notice  of  sale  $ 

Publishing  notice  of  sale   $ 

Commissions  on  sale    $ 

Certificate  and  duplicate  of  sale $ 

Recording  duplicate  certificate    $ 

Report  of  sale  and  distribution   $ 

$ 


Total,  $ 
Cash  at  sale  for  master  if  bid  in  by  complainant : 

Report   $ 

Expenses  and  cwnmissions . .  $ 


$ 

97.  Master's  Report  of  Sale  and  Distribution. 

(Title  of  court  and  cause.) 
Foreclosure 

To  the  honorable  judges  of  said  court,  in  chancery  sitting : 
Pursuant  to  a  decree  entered  in  the  above  entitled  cause  on  the 

da,y  of ,  A.  D.  19 . . ,  I, ,  a  master  in 

chancery  of  said  court,  respectfully  report  that  more  than 

days  having  elapsed  after  the  entry  of  said  decree,  and  said  de- 
fendant not  having  paid  the  whole  or  any  part  of  the  money  by 
said  decree  required  to  be  by  him  paid,  I  duly  advertised,  accord- 
ing to  the  law  and  to  said  decree,  the  premises  in  said  decree  and 
hereinafter  described,  to  be  sold  at  public  auction  to  the  highest 


190  EQUITY  PLEADING   AND   PRACTICE 

and  best  bidder  therefor,  for  cash,  at  the  hour  of  11  o'clock  in  the 

forenoon  of ,  the day  of A.  D 

at    ,    on    the    ground    floor    of    the    building    known 

as  No ,  in  the  city  of   in  said  county,  by 

causing  a  notice  containing  the  title  of  said  cause,  the  names  of 
the  parties  thereto,  the  name  of  the  court  wherein  said  cause 
was  pending,  and  a  description  of  the  premises  to  be  sold,  and 
a  statement  of  the  aforesaid  time,  place  and  terms  of  said  sale, 
to  be  published  for  three  successive  weeks  immediately  prior  to 

said    day  of  sale,   to- wit :   three  times   in    ,   a  public 

secular  newspaper,  of  general  circulation,  printed  and  pub- 
lished every  day,  in  the  city  of ,  in  said  county.     The 

day  of  the  firet  paper  containing  said  notice  was  the 

day  of ,  A.  D ,  and  the  date  of  the  last  paper 

containing  said  notice  was  the day  of ,  A.  D. 

;  a  certificate  of  which  publication  is  hereto  attached, 

Marked  Exhibit  A. 

At  the  time  and  place  so  designated  by  said  advertisement  for 
said  sale,  I  attended  to  make  said  sale ;  and  I  offered  said  prem- 
ises for  sale  at  public  auction  to  the  highest  and  best  bidder  for 
cash.  I  first  offered  each  lot  of  said  premises  for  sale  separately, 
and  there  were  no  bids  upon  said  offer.  I  next  offered  any  num- 
ber of  said  lots  less  than  the  whole  of  said  premises  for  sale  in 
groups  to  suit  bidders,  and  there  were  no  bids  upon  said  last- 
named  offer.  I  then  offered  said  premises  for  sale  entire ;  where- 
upon      offered  and  bid  therefor  the  sum  of   

dollars  ($ ),  and  that  being  the  highest  and  best  bid 

for  cash  therefor  offered,  I  struck  off  and  sold  to  said  bidder 
for  said  sum  of  money  tlie  said  premises  which  are  situated  in 

the  county  of  ,  and  state  of   ,  and  described 

as  follows,  to- wit :     (Describe  premises.)  

The  amount  aforesaid   realized   from  the  sale  aforesaid.     I 
have  allowed,  distributed,  credited,  paid  and  retained  as  fol- 
lows : 
(Allowed  complainants  (towards  or  in  full  of  amount  due  on 

decree  ($ )  and  interest  thereon  ($ )   . .  .$ 

(Allowed)  complainant  in  full  of  taxed  costs $ 

(Allowed)  complainant  in  full  of  solicitor's  fees $ 

Retained  by  master  for  advertising  sale. $ 

Retained  by  master  for  publishing  notice  of  sale $ 

Retained  by  master  for  commissions  on  sale $ 

Retained  by  master  for  certificate  of  sale  and  duplicate.  .$ 
Retained  by  master  for  recording  duplicate  certificate . .  $ 
Retained  by  master  for  report  of  sale $ 

The  receipts  for  said  payments  are  hereto  attached  as  a  part 
of  this  report  and  marked  "Exhibits  B,  C,  and  D." 

I  have  executed  and  delivered  to purchaser  at  said 

sale,  the  certificate  of  sale  directed  by  said  decree,  and  by  law, 


FORMS  OP  BILL  191 

to  be  executed,  and  have  filed  in  the  office  of  the  recorder  of 
deeds  of  said  county  the  duplicate  of  said  certificate. 

In  conclusion,  I  report  that  the  proceeds  of  said  sale  were  suffi- 
cient to  pay  the  amount  found  to  be  due  to  said  complainant 

All  of  which  is  respectfully  submitted. 

Dated  this day  of ,  19 . , 


Master  in  Chancery  of  the Court  of County, 


98.  Master's  Receipts  for  Moneys. 

(Title  of  court  and  cause.) 
Exhibit  B. 

,19.. 

Received  of  master  in  chancery  of  said  court dollars, 

on  account  of  amount  due  under  decree  herein,  together  with  in- 
terest thereon. 


Exhibit  C. 

,19.. 

Received  of  master  in  chancery  of  said  court dollars, 

for  solicitor's  fees,  due  under  decree  herein. 


Exhibit  D. 

,19.. 

Received  of  master  in  chancery  of  said  court dollars, 

on  account  of  complainant's  taxed  costs  herein. 


99.      Order  Confirming  Sale  and  Deficiency  Decree. 

(Title  of  court  and  cause.) 

And  now  again  come  said  complainants,  by  said    , 

their  solicitor,  and  this  cause  comes  on  to  be  further  heard  upon 

the  report  of  sale  by ,  master  in  chancery,  filed  herein 

on  the   day  of  ,  A.  D.  19.  .,  and  thereupon, 

on  motion  of  said  complainant's  solicitor,  it  is  ordered  and  de- 
creed that  said  report  and  sale,  be,  and  hereby  is  fully  approved 
and  confirmed. 

And  it  appearing  to  the  court  from  said  report  that  the  said 
master  has,  as  re<^iuired  by  said  decree,  retained  out  of  the  pro- 
ceeds of  such  sale  his  fees,  disbursements  and  commissions  on 

said  sale,  amounting  to dollars  ($ ),  and  paid 

to  complainants  their  costs  in  this  suit,  amounting  to 

dollars    ($ ),   and  their  solicitor's  fees,  amounting  to 


192  EQUITY   PLEAniNG    AND   PRACTICE 

dollars  ($ ),  and  filed  their  receipts  therefor 

with   his   report,    and  that   after   deducting    dollars 

($ ),  the  amount  so  retained  and  paid  out,  there  re- 
mained to  be  applied  upon  the  amount  due  to  said  complainant 

,    under    said    decree,    the   sum    of    dollars 

($ )  ;   and   the   said   master   producing  the  receipt  of 

,  the  said  complainant,  for  said  last-named  sum,  it  is 

ordered  that  the  same  be,  and  it  is,  credited  on  said  decree  as 

paid  to  said  complainant  on  said day  of ,  A. 

D.  19... 

And  it  further  appearing  to  the  court,  from  said  report,  that 
the  proceeds  of  said  sale  were  insufficient  to  pay  the  amount 
adjudged  to  be  due  to  said  complainant,  and  that  there  is  a 

balance  due  to  said  complainant over  and  above  such 

proceeds  of  sale,  of  the  sum  of  dollars  ($ )  ; 

now,  therefore,  it  is  ordered,  adjudged  and  decreed  by  the  court 

that  the  said  complainant   have  and  recover  of  and 

from  the  said  defendants   ,   and  upon  whom  personal 

service  was  had  in  this  cause,  and  who  are  personally  liable  for 

the  payment  of  said  debt,  the  said  last-mentioned  sum  of 

dollars  ($ ),  and  that  the  complainant   have 

execution  therefor,  as  upon  a  judgment  at  common  law. 

100.  Master's  Certificate  of  Sale. 

(Title  of  court  and  cause.) 

I,    ,   master  in  chancery  of  the    court  of 

county,    ,  do  hereby  certify,  that  pursuant 

to  a  decree  entered  on  the    day  of    A.  D. 

19 . . ,  by  the  said  court  in  the  above  entitled  cause,  I  duly  ad- 
vertised, according  to  law,  the  premises  hereinafter  described, 
to  be  sold  at  public  vendue,  to  the  highest  and  best  bidder  for 

cash,  at  the  hour  of   o'clock  in  the  forenoon,  on  the 

day  of ,  A.  D.,  19. .,  at No 

street,  in  the  city  of ,  in  said county.    That  at 

the  time  and  place  so  aforesaid  appointed  for  said  sale,  I  attended 
to  make  the  same,  and  offered  and  exposed  said  premises  for  sale 
at  public  vendue,   to  the   highest   and   best   bidder   for  cash: 

Whereupon    offered    and    bid    therefor   the   sum    of 

;  and  that  being  the  highest  and  best  bid  offered  there- 
for I  accordingly  struck  off  and  sold  to  said  bidder,  for  said  sum 

of  money,  the  said  premises,  which  are  situated  in  the 

county  of and  state  of ,  and  are  described  as 

follows,  to-wit : 

And  I  do  further  certify  that  the  said  legal  repre- 
sentatives or  assigns,  will  be  entitled  to  a  deed  of  said  premises 

on  the day  of  A.  D.  19. .,  unless  the  same 

shall  be  redeemed  according  to  law. 


FORMS  OF   BILL  193 

Witness  my  hand  and  seal,  this   day  of   

A.  D.  19.. 

[Seal.] 

Master  in  Chancery  of  the Court  of County, 

State  of 

101.  Master's  Certificate  of  Kedemption. 

Whereas,  the  following  described  premises,  situated  in  the 

county  of and  stat«  of ,  were  on  the 

day  of ,  A.  D.  19 . . ,  exposed  for  sale  at  public  vendue 

by   the   undersigned,   one   of   the   masters   in   chancery  of   the 

court  of   county,  in  pursuance  of  a  decree 

made  and  entered  by  the   court  of  county, 

on  the day  of A.  D.  19 . . ,  in  a  certain  cause 

then  pending  therein  on  the  chancery  side  thereof,  in  which 
defendant 

And,  whereas,  at  said  time  ,  being  the  highest  and 

best  bidder.  .  therefor,  became  the  purchaser.  .,  for  the  sum  of 

of  said  premises,  to-wit : ,  and  received  from 

the  undersigned  a  certificate  of  such  sale,  stating  the  said  pur- 
chaser would  be  entitled  to  a  deed  of  said  premises  on  the 
day  of ,  A.  D.  19.  .,  unless  sooner  redeemed. 

And,  whereas,  twelve  months  have  not  elapsed  since  said  sale. 

And,   whereas ,   being  interested  in  said  premises 

has  this  day  paid  to  the  undersigned,  as  master  in  chancery,  the 

sum  of   ,  being  the  amount  of  said  sale  with  interest 

thereon,  and  the  further  sum  of for  taxes  and  assess- 
ments paid  by  the  holder  of  said  certificate  of  sale  on  said  prem- 
ises, with  interest  thereon  as  and  for  the  redemption  of  said 
premises  from  said  sale. 

Now,  therefore,   the  undersigned   hereby   certifies   that   said 

premises  have  been  this  daj''  redeemed  from  said  sale  by 

in  acbordance  with  the  provisions  of  the  statute  in  such  case 
made  and  provided. 

Given  under  my  hand  and  seal  this day  of , 

A.  D.  19.. 

[Seal.] 

Master   in    Chancery    of  the    Court   of    

County. 

102.  Master's  Deed. 

This  indenture,  made  this  day  of ,  A.  D. 

19..,  between    ,  master  in  chancery  of  the    

court  of   county,  in  the  state  of  ,  party  of 

the  first  part,  and of  county  of and  state  of 

party  of  the  second  part,  witnes.seth: 

Whereas,  in  pursuance  of  a  decree  entered  on  the day 

E.  p.— 13 


194  EQUITY   PLEADING  AND   PRACTICE 

of ,  A.  D.  19 . . ,  by  the court  of  said 

county,  in  a  certain  case  then  pending  therein,  on  the  chancery 

side  thereof,  wherein    ,  complainant..,  and , 

defendant..,  the  said  master  in  chancery  duly  advertised,  ac- 
conling  to  law,  the  premises  hereinafter  described,  for  sale  at 

public  auction  to  the  highest bidder,   at  the 

hour  of 0  'clock,  in  the noon,  on  the 

day  of ,  A.  D.  19 .  . ,  at  in  in  said  

county. 

And,  whereas,  at  the  time  and  place  so  as  aforesaid  appointed 
for  said  sale,  the  said  master  in  chancery  attended  to  make 
the  same,  and  offered  and  exposed  said  premises  for  sal.e  at 

public  auction,  to  the  highest    bidder,    and 

thereupon offered  and  bid  therefor  the  sura  of 

dollars ($ )  ;  and  that  being  the  highest 

bid  offered  said  master  in  chancery  accordingly  struck  off  and 

sold  to  said for  said  sum  of  money,  the  said  premises, 

and  did  thereupon  sign,  seal  and  deliver  to  said  the 

usual  master's  certificate  therefor: 

And,  whereas,  said  premises  have  not  been  redeemed  from 
said  sale : 

Now,  therefore,  in  consideration  of  the  premises  the  said 
party  of  the  first  part  doth  hereby  convey  unto  the  said  party  of 

the  second  part   heirs  and  assigns,  the  said  premises, 

which  are  situated  in   county  of   and  state 

of ,  and  described  as  follows,  to-wit : 

To  have  and  to  hold  the  same,  with  all  the  appurtenances 
thereunto  belonging,  unto  the  said  party  of  the  second  part, 
heirs  and  assigns,  forever. 

Witness  the  hand  and  seal  of  the  said  party  of  the  first  part, 
the  day  and  year  first  above  written. 

[Seal.] 

Master  in  Chancery  of  the Court  of County. 

State  of   ,  ] 

County  of   f 

I,  a  notary  public  in  and  for  the  said in  the  state 

aforesaid,  do  hereby  certify  that  ,  master  in  chan- 
cery of  the    court  of  said   county,  who  is 

personally  knowTi  to  me  to  be  the  same  person  whose  name  is 
subscril>ed  to  the  foregoing  instrument,  appeared  before  me  this 
day  in  person,  and  acknowledged  that  he  signed,  sealed  and  de- 
livered the  said  Instrument  as  his  free  and  voluntary  act,  as 
such  master  in  chancery,  for  the  uses  and  purposes  therein 
set  forth. 

Given  under  my  hand  and  notarial  seal,  this   day 

of ,  A.  D.  190  . 


Notary  Public. 


forms  of  bill  195 

103.  Master's  Report  in  Partition  Suit. 

(Title  of  court  and  cause.) 

To  the  honorable  judges  of  said  court,  in  chancery  sitting : 

Pursuant  to  an  order  of  reference  heretofore  entered  herein, 
said  Master  reports  as  follows: 

That,  upon  due  notice  to  all  the  parties  hereto,  and  in  due 
form  of  law,  parties  were  present,  witnesses  were  duly  sworn 
and  testified,  evidence  was  heard  and  received,  and  proceedings 
were  had,  as  more  fully  appears  from  the  transcript  of  pro- 
ceedings and  evidence  annexed  as  a  part  of  this  report;  which 
said  transcript,  together  with  the  exhibits  therein  mentioned, 
contains  all  the  evidence  submitted  before  the  master  in  said 
cause ;  and  from  the  competent  evidence  so  submitted,  and  from 
the  confessions  under  the  pleadings  in  said  cause,  said  master 
finds  the  following  matters  of  fact  to  be  true: 

That— 

That — etc.  etc. 

(If  the  partition  bill  prays  only  for  general  relief  master 
should  make  following  recommendations  as  a  guide  for  the 
court's  next  order). 

Said  master  therefore  recommends  that  the  court  appoint 
three  commissioners,  not  connected  with  any  of  the  parties 
herein,  either  by  consanguinity  or  affinity,  and  entirely  disin- 
terested, to  make  partition  of  said  premises  above  described; 
that  such  commissioners  each  take  and  subscribe  an  oath  or  af- 
firmation fairly  and  impartially  to  make  partition  of  said  prem- 
ises, according  to  the  rights  and  interests  of  the  parties  herein, 
as  found  above  by  said  master  and  as  may  be  declared  by  th.e 
judgment  of  the  court,  if  the  same  can  be  done  consistently  with 
the  interests  of  the  parties;  or,  if  the  same  cannot  be  so  divided 
without  manifest  prejudice  to  the  parties  in  interest,  that  such 
commissioners  will  fairly  and  impartially  appraise  the  value  of 
each  piece  of  the  premises  aforesaid,  and  a  true  report  make 
to  said  court. 

Said  master  further  recommends  that  such  commissioners 
shall  go  upon  said  premises,  and  if  the  same  are  susceptible  of 
division  they  shall  make  partition  thereof,  allotting  the  several 
shares  to  the  respective  parties  entitled  thereto  as  aforesaid, 
quality  and  quantity  considered  according  tp  their  respective 
rights  and  interests,  as  may  be  adjudged  by  said  court,  designat- 
ing the  respective  shares  by  metes  and  bounds,  or  other  proper 
description,  and  that  such  commissioners  may  be  permitted  to 
employ  a  surveyor,  with  necessary  assistants,  to  aid  therein; 
and  if  the  premises  aforesaid  are  not  susceptible  of  division  with- 
out manifest  prejudice  to  said  parties  in  interest,  they  shall 
value  each  pieee  separately. 

Said   master   further    recommends   that  such   commissioners 


19g  EQUITY   PLEADING   AND   PRACTICE 

make  report  in  ^vriting,  signed  by  at  least  two  of  them,  showing 
what  they  have  clone,  and,  if  they  shall  have  made  a  division, 
describing  the  premises  divided  and  the  shares  of  each  party  by 
metes  and  bounds,  or  other  proper  description ;  or,  if  they  find 
that  said  premises  cannot  be  divided,  they  shall  so  report,  and 
shall  report  their  valuation  of  each  piece  separately. 

Said  master  further  recommends  that  if  the  whole  or  any  of 
the  premises  aforesaid  sought  to  be  partitioned  cannot  be  di- 
vided witliout  manifest  prejudice  to  the  said  owners  thereof,  and 
the  commissioners  appointed  to  divide  the  same  shall  so  report, 
the  court  shall  order  the  premises  so  not  being  susceptible  of  di- 
vision to  be  sold  at  public  vendue,  upon  such  terms  and  notice  of 
sale  as  the  court  shall  direct,  for  not  less  than  two-thirds  of  the 
total  amount  of  the  valuation  of  such  premises  so  not  susceptible 
of  division. 

All  of  which  recommendations  are  in  accordance  with  the 
provisions  of  the  statute  in  such  case  made  and  provided. 

All  of  which  is  respectfully  submitted  this   day  of 


Master  in  Chancery  of  the Court  of County, 


104,  ]\Iaster's  Report  op  Partition  Sale. 

(Title  of  court  and  cause.) 

report    of    partition    sale    by     MASTER    IN    CHANCERY. 

To  the  honorable  judges  of  said  court,  in  chancery  sitting : 

Pursuant  to  a  decree  made  and  entered  by  said  court  in  the 
above  entitled  cause  on  the  9th  day  of  July,  A.  D.  1900,  I, 
,  master  in  chancery  of  said  court,  respect- 
fully report  that,  in  accordance  with  said  decree,  I  duly  adver- 
tised the  premises  in  said  decree  and  hereinafter  described  to  be 
sold  at  public  auction  to  the  highest  and  best  bidder  for  cash, 
and  upon  the  terms  and  conditions  set  forth  in  said  decree,  at 

,  No street,  in  the  city  of ,  county  of 

,  and  state  of ,  at  the  hour  of  eleven  o  'clock  in 

the   forenoon,  on   ,  the    day  of    , 

A.  D.  19 .  . ,  by  causing  a  notice  containing  the  title  of  said  cause, 
the  names  of  the  parties  thereto,  the  name  of  the  court  in  which 
said  cause  was  pending,  a  description  of  the  premises  to  be  sold, 
and  a  statement  of  the  aforesaid  time,  place,  terms  and  condi- 
tions of  sale,  to  be  published  for  three  successive  weeks  prior  to 
said  sale  in  the  " , "  a  secular  newspaper  of  general  cir- 
culation in  said  county,  published  in  said  county  every  day  ex- 
cept Sunday,  the  date  of  the  first  publication  thereof  being  the 

day  of ,  A.  D.  19. .  ;  the  date  of  the  second 

publication  thereof,  being  the day  of ,  A.  D. 


FORMS   OF   BILL  197 

19. .  ;  and  the  date  of  the  third  publication  thereof  being  the 

day  of  ,  A.  D.  19 .  .  ;  a  certificate  of  which 

publication  is  hereto  attached  as  a  part  of  this  report  and  is 
marked  "Exhibit  A." 

At  the  time  and  place  designated  as  aforesaid  for  said  sale,  I 
attended  to  make  the  same,  and  offered  said  premises  for  sale 
at  public  auction  to  the  highest  and  best  bidders  for  cash  there- 
for, and  upon  the  terms  and  conditions  set  forth  in  said  de- 
cree. And  I  first  offered  each  of  said  lots  for  sale  separately 
and  singly,  making  note  of  each  amount  offered  for  each  single 
lot;  and  the  sum  total  of  the  several  bids  upon  said  last-named 
offer  by  said  master  was  not  sufficient  to  realize  and  fulfill  the 
amount  and  terms  set  forth  in  said  decree.  I  then  offered  the 
lots  of  said  premises  for  sale  singly  and  in  groups  to  suit  bid- 
ders ;  whereupon, offered  and  bid  the  sum  of 

($ )  for  lot  in  block  of  said  prem- 
ises ;    offered    and    bid    the   sum   of    dollars 

($ )  for  lot  in  block ,  of  said  prem- 
ises; etc.  And  the  total  of  said  last  mentioned  bids  amounted 
to  $ 

I  next  offered  said  premises  for  sale  in  any  grou'ps  or  com- 
binations of  lots  less  than  the  whole  of  said  premises,  and  there 
were  no  bids  upon  said  last-named  offer,  except  the  bids  as  set 
forth  as  aforesaid.  I  next  offered  said  premises  for  sale  entire, 
and  there  were  no  bids  upon  said  last-named  offer.  And  the 
bids  above  specified  being  the  highest  and  best  bids  offered  for 

said  premises,  I  struck  off  and  sold  to  said   ,  for  said 

sum  of hundred  ($ ) ,  lot  

in  block in  (etc.). 

And  I  also  struck  off  and  sold  to  said for  said  sum 

of  $, ,  lot (etc.). 

And  said  master  further  reports  that  said  purchasers  have 
paid  said  master  the  amounts  of  their  respective  bids,  condi- 
tional, however,  upon  the  confirmation  by  this  honorable  court 
of  said  master's  report  of  sale  herein,  and  upon  receiving  from 
said  master  their  respective  and  proper  deeds  of  conveyance  of 
the  premises  respectively  so  sold  to  them  as  aforesaid;  which 
said  deeds  of  conveyance  shall  be  in  accordance  with  the  terms 
and  conditions  set  forth  in  said  decree. 

All  of  which  is  respectfully  submitted,  this  day  of 

A.  D 


Master  in  Chancery  of  the Court  of County, 


198  equity  pleading  and  practice 

105.  Order  Confirming  IMaster's  Report  of  Par- 

tition Sale  and  Directing  Dstribution. 

(Title  of  court  and  cause.) 

The  report  of    ,  master  in  chancery,  appointed  by  a 

former  decree  of  the  court  herein  to  make  sale  and  to  carry 
into  effect  said  former  decree  and  make  report  of  his  proceed- 
ings, having  been  filed  in  this  court  on  the    day  of 

A.  D.  19.  .,  and  no  objections  having  been  filed  thereto 

up  to  this  date,  and  the  court,  having  examined  said  report, 
doth  find  that  the  said  master  has  in  every  respect  proceeded 
in  due  form  of  law  and  in  accordance  with  the  terms  of  said 
decree,  and  that  said  sale  was  fairly  made;  and  the  court,  be- 
ing fully  advised  in  the  premises,  doth  order,  adjudge  and  de- 
cree that  the  proceedings,  sale  and  report  of  said  master  be 
and  the  same  are  hereby  approved  and  confirmed ;  and  it  is 
further  ordered  that  the  said  master  execute  and  deliver  to 
the  said purchaser  at  said  sale,  a  proper  deed  of  con- 
veyance of  the  premises  so  sold;  and  that  out  of  the  proceeds 
of  said  sale  said  master  retain  his  commissions  and  fees  as  fol- 
lows: 

Report   upon    the   issues    $ 

Preparing  notice  of  sale    

Publishing  notice  of  sale    

Salesroom  fee,  imposed  by  decree   

Commissions  on  sale   

Report  of  sale    

Report  of  distribution    

Deed    


Total 

and  said  master  shall  distribute  the  residue  of  said  moneys  be- 
tween said  parties  as  follows: 

To  complainant 's  solicitor  the  sum  of $ 

To  the  three  commissioners  heretofore  appointed  herein 

each  the  sum  of  $10.00 30.00 

To  complainant,    for  sums  advanced  for  taxed 

costs    

To   on  account  of  her  dower  interest  in  said 

premises    

To  ,  on  account  of  her  2/80  interest  in  and  to 

the  premises  sold   

To  said ,  on  account  of  her  39/80  interest  in  and 

to  the  premises  sold 

To  said ,  on  account  of  her  39/80  interest  in  and 

to  the  premises  sold 


FORMS  OF   BILL  199 

Said  master  is  directed  to  take  and  file  with  his  report  the 
receipts  for  said  payments. 

Dated  this day  of ,  19. . 


Judge. 

106.  Master's  Report  of  Distribution  in 

Partition  Suit. 

(Title  of  court  and  cause.) 

report  op  distribution,  ,  master  in  chancery. 

To  the  honorable  judges  of  said  court,  in  chancery  sitting : 

Pursuant  to  a  further  order  entered  in  the  above  entitled  cause 
on  the day  of ,  19 .  . ,  whereby  the  master 's  re- 
port of  sale  filed  in  this  court  on  the day  of 

19..,  was  approved  and  confirmed  and  by  which  order  said 

master  was  directed  to  execute  and  deliver  to    ,  the 

purchaser  at  said  sale,  a  proper  deed  of  conveyance  of  said 
premises,  and  by  which  order,  also,  said  master  was  ordered  to 
make  distribution  of  the  proceeds  of  said  sale  and  take  receipts 
therefor,  said  master  reports  as  follows : 

That  the  amount  paid  by  said for  the  premises  was 

dollars  ($ ),  which  said  sum  said  master  has 

distributed  as  follows: 

Retained  by  master  as  commissions  and  fees : 

Report  upon  the  issues $ 

Preparing  notice  of  sale 

Publishing  notice  of  sale 

Salesroom  fee  imposed  by  decree .... 

Commissions  on  sale 

Report  of  sale 

Report  of  distribution 

Deed  

$ 

Paid  Commissioners'  fees 

Paid  complainant,   for  sums  advanced  for 

taxed   costs $ 

Paid  and  delivered  to   on  account  of  her 

dower  in  said  premises $ 

Paid  and  delivered  to    on  account  of  her 

2/80  interest  in  the  premises  sold $ 

Paid  to on  account  of  her  39/80  interest  in 

the  premises  sold $ 

Paid  to on  account  of  her  39/80  interest  in 

the  premises  sold $ 

Total    $ 


200  EQUITY  PLEADING  AND  PRACTICE 

The  receipts  for  said  payments  are  hereto  attached  as  a  part 
of  this  report,  and  are  marked,  respectively,  Exhibit  A,  B,  C, 
D,  E,  F  and  G. 

Said  master  reports  that  he  has  executed  and  delivered  to 

purchaser  at  said  sale  a  proper  deed  of  conveyance 

of  said  premises. 

All  of  which  is  respectfully  submitted  this  day  of 

,19.. 

Master  in  Chancery  of  the Court. 

107.  Restraining  Order  Pending  Application 

FOR  Injunction. 

(Title  of  court,  and  of  cause.) 

Whereas,  in  the  above  cause,  a  motion  for  the  issuance  of  a 
preliminary  writ  of  injunction  has  been  duly  filed,  the  hear- 
ing thereof  being  fixed  for  the day  of ,  19 . .  ; 

and  it  having  been  made  to  appear  that  there  is  danger  of  irre- 
parable injury  being  caused  to  complainant,  before  the  hearing 
of  said  application  for  the  writ  of  injunction,  unless  the  said 
defendants  are,  pending  such  hearing,  restrained  as  herein  set 
forth,  therefore  complainant's  application  for  such  restraining 
order  is  granted  (if  security  is  required,  then  add,  upon  his  giv- 
ing good  security  in  the  sum  of ,  for  making  good  to 

the  defendants  the  damages  and  costs  that  may  be  awarded 
them  by  reason  of  the  granting  of  this  order)  : 

Now,  therefore,  take  notice  that  you,  and , 

defendants  herein,  your  agents,  servants  and  attorneys,  and  each 
of  you,  are  hereby  specially  restrained  and  enjoined  from  (here 
insert  the  act  or  acts  sought  to  be  restrained),  until  the  hearing 
upon  said  application  for  a  writ  of  injunction  and  the  further 
order  of  the  court  in  the  premises. 


Judge. 

108.  Order  Granting  Preliminary  Injunction.  i 

(Title  of  court,  and  of  cause.) 

Whereas,  in  the  above  entitled  cause,  an  application  for  the 
issuance  of  a  preliminary  writ  of  injunction  was  duly  filed  and 
set  dovnx  for  hearing  before  the  court  (or,  before  the  Honorable 

G.  H.,  a  judge  of  said  court)  on  the day  of , 

19 .  . ,  at    ,  notice  of  such  application  being  given  to 

and ,  defendants  herein ;  and  the  parties  now 

appearing  by  their  solicitors  and  being  heard  upon  such  appli- 
cation, and  it  appeai-ing  that  cause  exists  for  the  granting  a 
writ  of  injunction,  pending  the  final  hearing  of  the  cause,  as 
prayed  for: 


FORMS   OF   BILL  201 

It  is  therefore  ordered  that  upon  the  complainant  giving  se- 
curity, by  bond,  in  the  sum  of ,  conditioned  that  (here 

insert  the  proper  conditions),  a  writ  of  injunction  issue  com- 
manding, restraining  and  enjoining  the  defendants,  their  agents, 
servants  and  attorneys,  from  (here  set  forth  the  special  matter 
sought  to  he  enjoined),  until  the  further  order  of  the  court  in 
the  premises, 

109,  Writ  of  Preliminary  Injunction. 

(Title  of  court,  and  of  cause.) 

The  President  of  the  United  States,  to and : 

Whereas,  in  the  above  entitled  cause,  now  pending  in  said 

United  States  District  Court  in  and  for  the district  of 

,  upon  application  duly  made  to  the  court  (or  if  the 

judge,  so  state,  giving  Ms  name),  it  was  on  the day  of 

,  19.  .,  ordered  that  a  preliminary  writ  of  injunction 

issue  therein  as  prayed  for  in  the  bill  of  complaint  herein  filed 
and  as  directed  in  said  order: 

Now,  therefore,  know  ye,  that  you,    and   , 

your  agents,  servants  and  attorneys,  and  each  of  them,  are  hereby 
strictly  restrained  and  enjoined  from  (here  set  forth  clearly 
the  act  or  acts  sought  to  be  enjoined),  and  you  and  each  of 
you  are  hereby  commanded  that  you  do  desist  and  refrain  from 
doing  or  causing  to  be  done  all  or  any  of  the  acts  and  things 
hereinabove  recited  and  set  forth,  until  the  further  order  of 
the  court  in  the  premises. 

Witness  the  Honorable ,  chief  justice  of  the  Supreme 

Court  of  the  United  States,  this day  of ,  and 

the  seal  of  said  District  Court  in  and  for  the district 

of 

,  Clerk. 

110.  Order  of  Consolidation. 

(Title  of  court  and  of  both  causes  to  he  consolidated.) 
The  above-entitled  causes  coming  on  this  day  to  be  heard  on 

the  motion  of ,  solicitor  for ,  defendant  in  each 

of  the  above  entitled  causes,  and  the  complainants  in  each  of 

said   causes  being   present   in   open   court  by    ,   their 

solicitor,  and  the  court  being  fully  advised  in  the  premises,  it 
is  ordered  that  the  above-entitled  causes  be  and  they  are  hereby 
consolidated  into  one  cause  in  this  court,  and  that  all  separate 
proceedings  in  each  of  the  above-entitled  causes,  save  the  first 
of  Said  causes,  be  stayed,  and  that  all  future  orders  and  pro- 
ceedings in  any  of  said  causes  be  taken  as  in  the  first  of  said 
above-entitled  causes. 


202  equity  pleading  and  practice 

111.  Order  to  Pay  Money  into  Court. 

(Title  of  court  and  cause.) 

On  reading  the  bill  and  answer  in  this  cause  (and  upon  due 
proof  of  service  of  notice  of  this  motion),  and  on  motion  of  J. 
E.,  solicitor  for  complainant,  and  on  hearing  E.  F.  in  opposition 
to  said  motion  (or,  no  one  appearing  to  oppose), 

It  is  ordered  that  the  defendant,  C.  D.,  do,  on  or  before  the 

day  of ,  A.  D ,  next,  pay  into  the  hands 

of  the  clerk  of  this  court,  in  trust  in  this  cause,  the  sum  of 

dollars,  admitted  by  the  answer  of  the  said  defendant 

to  be  due  from  him,  and  that  when  such  money  is  paid  it  be  de- 
posited by  said  clerk  in  trust  in bank,  to  the  credit  of 

this  cause,  there  to  remain  until  the  further  order  of  this  court. 

112.  Praecipe  for  Setting  Down  Cause  for 

Argument  or  Hearing. 

(Title  of  court  and  cause.) 
To  Clerk  of  said  Court : 

In  above  cause  set  down  for  argument  demurrer  (or,  plea) 
filed  to  the  bill. 

Set  do-\\Ti  above  cause  for  argument  on  defendant's  objection 
for  want  of  parties. 

Set  down  above  cause  for  hearing  on  bill  and  answer. 

Set  down  above  cause  for  hearing  on  pleadings  and  proofs. 

113.  Stipulation. 

(Title  of  court  and  cause.) 

It  is  hereby  stipulated  by  and  between  the  complainant  in  the 
above-entitled  cause,  by ,  his  solicitor,  and  the  defend- 
ant in  said  cause,  by   ,  his  solicitor,  that,  etc.     (Here 

insert  the  matter  of  the  stipulation-;  as,  for  example,  that  such 
cause  may  be  referred  to ,  one  of  the  masters  in  chan- 
cery of  this  court,  to  take  testimony  and  report  the  same  to  the 
court,  together  with  his  conclusions  of  fact  and  of  law  thereon, 
with  all  convenient  speed.) 

Dated, ,  19... 

A.  B.,  Complainant, 

By   His  Solicitor. 

C.  D.,  Defendant, 

By   ,  His  Solicitor. 

114.  "Writ  of  Ne  Exeat. 

(Title  of  court,  and  of  cause.) 

The  President  of  the  United  States,  to    ,  the  United 

States  marshal  in  and  for  district  of  : 

Whereas  in  the  above  entitled  cause  in  equity  now  pending 


FORMS  OP  BIIjL  208 

in  the  United  States  District  Court  in  and  for  the dis- 
trict of   ,  it  has  been  made  to  appear  by  satisfactory 

proof  to  the  said  court  {or,  to  the  district  justice  or  judge)  that 

,  defendant  in  said  cause,  is  equitably  indebted  to  the 

complainant,   and  that  the  said    ,   defendant,  designs 

quickly  to  depart  from  the  United  States,  and  thereby  defeat  the 
remedy  sought  by  complainant  and  greatly  to  prejudice  the 
rights  of  said  complainant: 

Therefore  you  are  hereby  ordered  and  commanded  that  with- 
out delay  you  cause  the  said  to  give  good  and  suffi- 
cient bail  or  security  in  the  sum  of dollars,  to  be  by 

you  approved,  that  he  will  not  depart  beyond  the  limits  of  the 
United  States  without  leave  of  this  court  first  had ;  and  in  case 
Kiid ,  defendant,  fails  to  give  bail  or  security  as  afore- 
said, you  are  commanded  to  keep  him  in  custody  until  the  fur- 
ther order  of  court  or  until  he  gives  the  bail  or  security  above 
required. 

"Witness  the  Honorable ,  chief  justice  of  the  Supreme 

Court  of  the  United  States,  this day  of ,  19 . . , 

and  the  seal  of  said  District  Court  in  and  for  the dis- 
trict of 

Clerk. 

115.  Weit  op  Sequestration. 

(Title  of  court,  and  of  cause.) 

The  President  of  the  tJnited  States,  to : 

Whereas,  in  the  above  entitled  cause  in  equity,  pending  in 

the  United  States  District  Court  in  and  for  the district 

of ,  it  was,  on  the day  of ,  ordered 

and  decreed  that ,  defendant,  should  (here  briefly  state 

requirements  of  the  order  or  decree).    And  it  now  appearing  that 

the  said    ,  defendant,  has  wholly  failed  to  obey  and 

perform  such  order  and  decree,  and  that  for  such  failure  a  ^vrit 
of  attachment  has  been  hitherto  duly  issued  from  the  clerk's 
office  of  this  court  for  the  attachment  of  the  person  of  said  de- 
fendant, but  that  said  writ  has  been  returned  by  the  marshal 
of  this  district  unserved  for  the  reason  that  said  defendant  can- 
not be  found  within  the  jurisdiction  of  this  court,  and  that  for 
cause  shown  a  writ  of  sequestration  has  been  ordered  to  issue 

for  the  seizure  of  the  estate  of  said ,  defendant,  for  the 

purpose  of  compelling  obedience  on  his  part  to  said  order  and 
decree  hereinbefore  mentioned : 

Now,  therefore,  know  ye  that,  having  confidence  in  your  pru- 
dence and  fidelity,  you  are  hereby  authorized,  empowered  and 
commanded  to  seize  and  take  possession  of  (here  describe  the 
estate,  or  portion  of  it,  to  be  seized,  as  the  real  and  personal 
estate  of  said   within   ,  or  certain  realty  or 


204  «  EQUITY   PLEADESTG  AND   PRACTICE 

personalty),  and  the  rents  and  profits  of  said  realty  to  collect 
and  receive,  and  possession  of  said  personality  to  take  and  keep 
until  the  further  order  of  the  court  in  the  premises. 

Witness  the  Honorable ,  chief  justice  of  the  Supreme 

Court  of  the  United  States,  this day  of ,  with 

the  seal  of  said  United  States  District  Court  in  and  for 

district  of 

116.  Writ  of  Assistance. 

(Title  of  court,  and  of  cause.) 

The  President  of  the  United  States,  to ,  marshal  of  the 

district  of ,  Greeting : 

Whereas  in  the  above  entitled  cause  it  has  been  made  to  ap- 
pear to  the  said  United  States  District  Court  in  and  for  the 

district  of ,  that  under  the  decree  of  said  court 

heretofore  rendered  in  the  above  case,  and  the  proceedings  had 

for  the  enforcement  thereof,  the  said ,  complainant  as 

aforesaid  (or-,  H.  B.,  the  purchaser  at  the  foreclosure  sale,  or 
whoever  the  party  entitled  to  the  writ  may  be),  is  now  entitled 
to  be  put  in  possession  of  the  following  realty  (describing  it), 
or  to  have  delivered  up  to  him  the  following  described  personal 
propertj'^ : 

Now,  therefore,  you,  as  United  States  marshal  for  said 
district  of  ,  are  hereby  directed  and  com- 
manded that  you  forthwith  put  the  said  into  posses- 
sion of  the  real  estate  above  described  (or,  cause  to  be  delivered 

to  said   the  personal  property  above  described),  and 

that  you  cause  the  defendants  in  the  above  suit,  their  agents, 
servants  and  attorneys,  to  forthwith  yield  possession  of  said 
property  in  obedience  to  the  decree  heretofore  entered  in  this 
case.    Hereof  fail  not. 

Witness  the  Honorable ,  chief  justice  of  the  Supreme 

Court  of  the  United  States,  this day  of ,  19 . . . 

with  the  seal  of  said  United  States  District  Court  in  and  for  the 

district  of 

,  Clerk. 

117.  Bill  op  Revivor. 

(Title  of  court  and  of  cause.) 

To ,  the  Judges  of  said  Court : 

........    herein   avers  and   shows   to   this  honorable   court 

that  since  the  beginning  of  this  suit  (here  insert  event  that  has 
caused  the  abatement  and  necesity  of  reviving  the  cause,  as 
the  death  of  party,  and  set  forth  who  are  the  representatives, 
heirs  or  others  against  whom  it  is  sought  to  revive). 

Wherefore,  by  reason  of  the  premises,  this  suit  has  become 
stayed  or  abated;  and  to  revive,  continue  and  further  proceed 


FORMS  OF   BILL  205 

therewith  it  has  become  necessary  to  make  said   and 

parties  hereto,  to  which  end prays  and  moves 

the  court  to  enter  all  proper  orders  as  to  notice  to  the  parties 
to  be  substituted,  and  for  reviving  and  continuing  said  cause 

and  substituting  said    and  said    as  parties 

(complainant  or  defendant)  and  for  the  filing  of  such  pleadings 
or  amendments  as  may  be  necessary. 

118.  Bill  op  Review  on  Ground  of  New  Matter. 

(Title  of  court  and  of  cause.) 


Bill  of  review  on  behalf  of 


To  the  Judges  of  said  Court : 

Petitioner  avers  and  shows  that  in  a  certain  suit  entitled 

as  above,  and  brought  in  this  court  to  the term,  19.  ., 

thereof,    this    petitioner    was    defendant     {or,    complainant) 

therein,  and  that  at  the term,  19.  .,  of  said  court,  upon 

a  hearing  therein,  a  final  decree  therein  was  entered  in  said 
cause  greatly  to  the  prejudice  and  injury  of  this  petitioner, 
which  said  decree  is  entered  at  large  upon  the  records  of  this 
court  and  to  which  reference  is  prayed. 

And  this  petitioner  avers  and  says  that  lately  and  since 
the  entry  of  said  final  decree  aforesaid  he  hath  discovered  that 
(here  set  forth  the  new  matter  or  the  new  evidence  relied  on  as 
ground  of  review,  with  proper  averments  to  show  its  materiality, 
and  also  show  that  the  party  was  not  in  fault  in  not  adducing 
such  matter  at  the  hearing). 

Wherefore,  for  said  causes  alleged,  said  decree  should  be  re- 
viewed, reversed  and  set  aside;  and  to  the  end  that  petitioner 
may  be  permitted  to  show   and  prove  the  matters  aforesaid, 

petitioner  prays  process  by  subpoena  against ,  requiring 

him  to  appear  hereto  and  due  answer  make,  and  that  upon  the 
hearing  hereof  the  said  decree  may  be  reviewed,  reversed  and 
set  aside,  and  such  other  and  further  orders  and  decree  be  made 
as  may  to  the  court  seem  proper. 


United  States  of  America,     I 
District  of  ^ 

I,   ,  being  duly  sworn,  do  say  that  I  am  petitioner 

in  the  foregoing  bill  of  review,  that  I  have  read  the  same,  and 
that  the  matters  and  things  therein  set  forth  are  true. 


Subscribed  and  sworn  to  before  me  this    day  of 

,19.. 


206  equity  pleadestg  and  practice 

119.        Bill  of  Re\'iew  for  Errors  on  Face  of  Record. 
(Title  of  couti  and  of  cause.) 

>     Bill  of  review  on  behalf  of 


To  the  Judges  of  said  Court : 

Petitioner  respectfully  avers  that  in  a  certain  suit  entitled 

as   above,   and   brought   in   this   court   to   the    term, 

19..,  thereof,  this  petitioner  was  defendant  (or,  complainant) 

therein,  and  that  at  the term,  19. .,  of  said  court,  upon 

a  hearing  therein,  a  final  decree  was  entered  in  said  cause  greatly 
to  the  prejudice  and  injury  of  your  petitioner,  which  said 
decree  is  entered  at  large  upon  the  records  of  this  court,  and  to 
which  reference  is  prayed.  And  petitioner  avers  and  says 
that  seid  decree  so  entered  is  upon  the  face  of  the  record  erro- 
neous for  that  (here  set  forth  the  particular  matters  in  which 
error  is  alleged,  and  show  how  such  alleged  errors  prejudice 
petitioner.) 

Wherefore,  as  said  errors  appear  on  the  face  of  the  record,  and 
are  greatly  prejudicial  to  petitioner  and  his  rights  in  the 
premises,  petitioner  prays  that  said  decree  may  be  reviewed, 
reversed   and   set   aside.      And   to  that   end   petitioner  prays 

process  by  subpoena  against ,  requiring  him  to  appear 

and  answer  hereto  and  show  cause,  if  he  may,  why  said  decree 
should  not  be  reviewed  and  set  aside,  and  such  further  orders 
and  decrees  be  made  as  to  the  court  may  seem  just. 

120.  Judge's  Certificate  of  Evidence  Heard 

IN  Open  Court. 

(Title  of  court  and  of  cause.) 

Be  it  remembered,  and  certified  that  on  the  hearing  of  this 
cause,  at  the  above  term  of  court,  upon  the  bill  of  complaint, 
answer  to  said  bill,  and  the  replication  thereto,  the  following 
proceedings  and  evidence  were  had  and  taken : 

C.  D.,  a  witness  produced  on  the  part  of  complainant,  was 
sworn  and  testified  as  follows: 

(Here  insert  his  testimony  including  stenographer's  affidavit, 
as  follows): 

And  the  complainant  further  offered  in  evidence  one  trust 
deed  marked  for  identification,  as  complainant's  exhibit  1,  and 
four  promissory  notes  marked  for  identification  as  complainant's 
exhibits  2,  3,  4,  5,  in  words  and  figures  as  follows :  (Here  copies.) 

And  further,  E.  F.,  a  witness  on  the  part  of  the  defendant,  was 
sworn  and  testified  as  follows:  {Here  insert  his  testimony  in 
fidl  also  verified  by  stenographer's  affidavit.) 

And  further  the  defendant  offered  in  evidence  a  certain  deed 


FORMS   OP   BILL  207 

marked  for  identification  as  defendant's  exhibit  1,  in  words  and 
figures,  as  follows,  to-wit:     (Here  insert  copy.) 

Be  it  further  remembered,  and  certified,  that  the  foregoing 
were  all  the  proceedings  .and  evidence  had  and  taken  on  the  hear- 
ing of  said  cause. 

And,  inasmuch  as  the  matters  above  set  forth  do  not  fully 
apear  of  record  in  said  cause,  the tenders  this  certifi- 
cate of  the  proceedings  and  evidence,  and  prays  that  the  same 
may  be  certified  under  the  hand  and  seal  of  the  judge  of  this 
court,  and  thereby  made  a  part  of  the  record  in  said  cause,  and 
it  is  accordingly  certified  and  made  a  part  of  the  record  of  said  s. 
cause. 

Dated  this ,  A.  D,  19... 


Judge. 

State  of ,1 

County  of j    ^*- 

I, ,  do  hereby  certify  that  I  am  a  shorthand  reporter 

and  that  the  above  and  foregoing  is  a  true  and  correct  transcript 
of  all  the  evidence  taken  by  me  in  shorthand  upon  the  examina- 
tion of  witnesses  in  open  court,  and  of  the  proceedings  had  upon 
the  hearing  of  this  cause. 

Dated  this day  of ,  A.  D.  19. . 


Subscribed  and  sworn  to  before  me,  this   day  of 

A.  D.  19.. 


Notary  Public 

121.  Petition  for  Appeal. 

(Title  of  court,  of  cause,  and  address  to  judges.) 

Your  petitioner,   the    in  the  above  entitled  cause, 

would  respectfully  represent  and  show  that  in  the  above  en- 
titled case  pending  in  the  United  States  District  Court  in  and  for 

the    district  of    ,  there  was  entered  at  the 

term,  19 . . ,  of  said  court,  a  final  decree  greatly  to  the 

prejudice  and  injury  of  your  petitioner,  which  said  decree  is 
erroneous  and  inequitable  in  many  particulars. 

Wherefore,  in  order  that  your  petitioner  may  obtain  relief  in 
the  premises  and  have  opportunity  to  show  the  errors  com- 
plained, your  petitioner  prays  that  he  may  be  allowed  an  appeal 

in  said  case  to  the court,  and  that  the  proper  orders 

touching  the  security  required  of  him  may  be  made. 

122.  Citation  Upon  Appeal. 

(Title  of  court  and  of  cause.) 

United  States  of  America,  to : 

You  are  hereby  notified  that  in  a  certain  case  in  equity  in 


208  EQUITY   PLEADING    AND   PRACTICE 

the  United  States  District  Court  in  and  for  the  dis- 
trict of ,  wherein is  complainant  and 

and  are  defendants,  an  appeal  has  been  allowed,  the 

therein  to  the    and  you  are  hereby  cited 

and  admonished  to  be  and  appear  in  said  court  at   , 

days  after  the  date  of  this  citation,  to  show  cause,  if 

any  there  be,  why  the  order  and  decree  appealed  from  should 
not  be  corrected  and  why  speedy  justice  should  not  be  done 
the  parties  in  that  behalf. 

Witness,   the   Honorable    ,  judge   of    ,   this 

day  of ,  A.  D.  19... 

Judge  of 


THE  NEW  RULES  OF  PRACTICE 

FOR  THE 

COURTS  OF  EQUITY 

OF  THE  UNITED  STATES 


PROMULGATED  BY  THE 

SUPREME  COURT  OF  THE  UNITED  STATES 

NOVEMBER  4,  1912 

In  Force  February  1,  1913 


FEDERAL  EQUITY  RULES 


Rule  1.  District  court  always  open  for  certain  purposes — 
Orders  at  chambers.  The  district  courts,  as  courts  of  equity, 
shall  be  deemed  always  open  for  ■  the  purpose  of  filing  any 
pleading,  of  issuing  and  returning  mesne  and  final  process,  and 
of  making  and  directing  all  interlocutory  motions,  orders,  rules 
and  other  proceedings  preparatory  to  the  hearing,  upon  their 
merits,  of  all  causes  pending  therein. 

Any  district  judge  may,  upon  reasonable  notice  to  the  par- 
ties, make,  direct,  and  award,  at  chambers  or  in  the  clerk's 
office,  and  in  vacation  as  well  as  in  term,  all  such  process,  com- 
missions, orders,  rules  and  other  proceedings,  whenever  the 
same  are  not  grantable  of  course,  according  to  the  rules  and 
practice  of  the  court. 

Rule  2.  Clerk's  office  always  open,  except,  etc.  The  clerk's 
office  shall  be  open  during  business  hours  on  all  days,  except 
Sundays  and  legal  holidays,  and  the  clerk  shall  be  in  attend- 
ance for  the  purpose  of  receiving  and  disposing  of  all  motions, 
rules,  orders  and  other  proceedings  which  are  grantable  of 
course. 

Rule  3.  Books  kept  by  clerk  and  entries  therein.  The  clerk 
shall  keep  a  book  known  as  "Equity  Docket,"  in  which  he 
shall  enter  each  suit,  with  a  file  number  corresponding  to  the 
folio  in  the  book.  All  papers  and  orders  filed  with  tlie  clerk 
in  the  suit,  all  process  issued  and  returns  made  thereon,  and  all 
appearances  shall  be  noted  briefly  and  chronologically  in  this, 
book  on  the  folio  assigned  to  the  suit  and  shall  be  marked. with- 
its  file  number. 

The  clerk  shall  also  keep  a  book  entitled  "Order  Book,"  in 
which  shall  be  entered  at  length,  in  the  order  of  their  making, 

E.  p.— 14  > 

209 


210  EQUITY    PLEADING   AND   PRACTICE 

all  orders  made  or  passed  by  him  as  of  course  and  abo  all 
orders  made  or  passed  by  the  judge  in  chambers. 

lie  shall  also  keep  an  "Equity  Journal,"  in  which  shall  be 
entered  all  orders,  decrees  and  proceedings  of  the  court  in 
equity  causes  in  term  time. 

Separate  and  suitable  indices  of  the  Equity  Docket,  Order 
Book  and  Equity  Journal  shall  be  kept  by  the  clerk  under  the 
direction  of  the  court. 

Rule  4.  Notice  of  orders.  Neither  the  noting  of  an  order  in 
the  Equity  Docket  nor  its  entry  in  the  Order  Book  shall  of 
itself  be  deemed  notice  to  the  parties  or  their  solicitors;  and 
when  an  order  is  made  without  prior  notice  to,  and  in  the  ab- 
sence of,  a  party,  the  clerk,  unless  otherwise  directed  by  the 
court  or  judge,  shall  forthwith  send  a  copy  thereof,  by  mail, 
to  such  party  or  his  solicitor  and  a  note  of  such  mailing  shall 
be  made  in  the  Equity  Docket,  which  shall  be  taken  as  suffi- 
cient proof  of  due  notice  of  the  order.  i 

Rule  5.  Motions  grantable  of  course  by  clerk.  All  motions 
and  applications  in  the  clerk's  office  for  the  issuing  of  mesne 
process  or  final  process  to  enforce  and  execute  decrees;  far 
taking  bills  pro  confesso;  and  for  other  proceedings  in  the 
clerk's  office  which  do  not  require  any  allowance  or  order  of. 
the  court  or  of  a  judge,  shall  be  deemed  motions  and  applica- 
tions grantable  of  course  by  the  clerk;  but  the  same  may  be 
suspended,  or  altered,  or  rescinded  by  the  judge  upon  special 
cause  shown. 

Rule  6.  Motion  day.  Each  district  court  shall  establish  reg- 
ular times  and  places,  not  less  than  once  each  month,  when 
motions  requiring  notice  and  hearing  may  be  made  and  dis- 
posed of;  but  the  judge  may  at  any  time  and  place,  and  on 
such  notice,  if  any,  as  he  may  consider  reasonable,  make  and 
direct  all  interlocutory  orders,  rulings  and  proceedings  for  the 
advancement,  conduct  and  hearing  of  causes.  If  the  public 
interest  permits,  the  senior  circuit  judge  of  the  circuit  may 
dispense  with  the  motion  day  during  not  to  exceed  two  months 
in  the  year  in  any  district. 

Rule  7.  Process,  mesne  and  final.  The  process  of  subpoena 
shall  constitute  the  proper  mesne  process  in  all  suits  in  equity, 


FEDEB.VL  EQUITY  RULES  211 

in  the  first  instance,  to  require  the  defendant  to  appear  and 
answer  the  hill;  and,  unless  otherwise  provided  in  these  rules 
or  specially  ordered  by  the  court,  a  writ  of  attachment  and,  if 
the  defendant  cannot  be  found,  a  writ  of  sequestration,  or  a 
writ  of  assistance  to  enforce  a  delivery  of  possession,  as  the 
case  may  require,  shall  be  the  proper  process  to  issue  for  the 
purpose  of  compelling  obedience  to  any  interlocutory  or  final 
order  or  decree  of  the  court. 

Eule  8.  Enforcement  of  final  decrees.  Final  process  to  exe- 
cute any  decree  may,  if  the  decree  be  solely  for  the  payment  of 
money,  be  by  a  writ  of  execution,  in  the  form  used  in  the  dis- 
trict court  in  suits  at  common  law  in  actions  of  assumpsit. 
If  the  decree  be  for  the  performance  of  any  specific  act,  as, 
for  example,  for  the  execution  of  a  conveyance  of  land  or  the 
delivering  up  of  deeds  or  other  documents,  the  decree  shall,  in 
all  cases,  prescribe  the  time  within  which  the  act  shall  be 
done,  of  which  the  defendant  shall  be  bound,  without  further 
service,  to  take  notice ;  and  upon  affidavit  of  the  plaintiff, 
filed  in  the  clerk's  office,  that  the  same  has  not  been  complied 
with  within  the  prescribed  time,  the  derk  shall  issue  a  writ  of 
attachment  against  the  delinquent  party,  from  which,  if 
attached  thereon,  he  shall  not  be  discharged,  unless  upon  a  full 
compliance  with  the  decree  and  the  payment  of  all  costs,  or 
upon  a  special  order  of  the  court,  or  a  judge  thereof,  upon  mo- 
tion and  affidavit,  enlarging  the  time  for  the  performance 
thereof.  If  the  delinquent  party  cannot  be  found  a  writ  of 
sequestration  shall  issue  against  his  estate,  upon  the  return  of 
non  est  inventus,  to  compel  obedience  to  the  decree.  If  a  man- 
datory order,  injunction  or  decree  for  the  specific  performance 
of  any  act  or  contract  be  not  complied  with,  the  court  or  a 
judge,  besides,  or  instead  of,  proceedings  against  the  diso- 
bedient part}'"  for  a  contempt  or  by  sequestration,  may  by  order 
direct  that  the  act  required  to  be  done,  be  done,  so  far  as  prac- 
tricable,  by  some  other  person  appointed  by  the  court  or  judge, 
at  the  cost  of  the  disobedient  party,  and  the  act,  when  so  done, 
shall  have  like  effect  as  if  done  by  him. 

Rule  9.  Writ  of  assistance.  When  any  decree  or  order  is 
for  the  delivery  of  possession,  upon  proof  made  by  affidavit  of 
q.  demand  and  refusal  to  obey  the  decree  or  order,  the  party 


212  EQUITY   PLELVDING   AND  PRACTICE 

prosecutiug  the  same  shall  be  entitled  to  a  writ  of  assistance 
from  the  clerk  of  the  court. 

Rule  10.  Decree  for  deficiency  in  foreclosures,  etc.  In  suits 
for  the  foreclosure  of  mortgages,  or  the  enforcement  of  other 
liens,  a  decree  may  be  rendered  for  any  balance  that  may  be 
found  due  to  the  plaintiff  over  and  above  the  proceeds  of  the 
sale  or  sales,  and  execution  may  issue  for  the  collection  of  the 
same,  as  is  provided  in  rule  8  when  the  decree  is  solely  for  the 
payment  of  money. 

Rule  11.  Process  in  behalf  of  and  against  persons  not  parties. 

Every  person,  not  being  a  party  in  any  cause,  who  has  ob- 
tained an  order,  or  in  whose  favor  an  order  shall  have  been 
made,  may  enforce  obedience  to  such  order  by  the  same  process 
as  if  he  were  a  party;  and  every  person,  not  being  a  party, 
against  Avhom  obedience  to  any  order  of  the  court  may  be  en- 
forced, shall  be  liable  to  the  same  process  for  enforcing  obedi- 
ence to  such  orders  as  if  he  were  a  party. 

Rule  12.  Issue  of  subpoena — Time  for  answer.  Whenever 
a  bill  is  filed,  and  not  before,  the  clerk  shall  issue  the  process 
of  subpoena  thereon,  as  of  course,  upon  the  application  of  the 
plaintiff,  which  shall  contain  the  names  of  the  parties  and  be 
returnable  into  the  clerk's  office  twenty  days  from  the  issu- 
ing thereof.  At  the  bottom  of  the  subpoena  shall  be  placed  a 
memorandum,  that  the  defendant  is  required  to  file  his  answer 
or  other  defense  in  the  clerk's  office  on  or  before  the  twentieth 
day  after  service,  excluding  the  day  thereof ;  otherwise  the  bill 
may  be  taken  pro  confesso.  Where  there  are  more  than  one 
defendant,  a  writ  of  subpoena  may,  at  the  election  of  the  plain- 
tiff, be  sued  out  separately  for  each  defendant,  or  a  joint  sub- 
poena tigainst  all  the  defendants. 

Rule  13.  Manner  of  serving  subpoena.  The  service  of  all 
subpoenas  shall  be  by  delivering  a  copy  thereof  to  the  defend- 
ant personally,  or  by  leaving  a  copy  thereof  at  the  dwelling- 
house  or  usual  place  of  abode  of  each  defendant,  with  some 
adult  person  who  is  a  member  of  or  resident  in  the  family. 

Rule  14.  Alias  subpoena.  Whenever  any  subpoena  shall  be 
returned  not  executed  as  to  any  defendant,  the  plaintiff  shall 


FEDERAL  EQUITY  RULES  213 

be  entitled  to  other  subpoenas  against  such  defendant,  until 
due  service  is  made. 

Rule  15.  Process,  by  whom  served.  The  service  of  all  pro- 
cess, mesne  and  final,  shall  be  by  the  marshal  of  the  district  or 
his  deputy,  or  by  some  other  person  specially  appointed  by 
the  court  or  judge  for  that  purpose,  and  not  otherwise.  In  the 
latter  case,  the  person  serving  the  process  shall  make  affidavit 
thereof. 

Rule  16.  Defendant  to  answer — Default — Decree  pro  con- 
fesso.  It  shall  be  the  duty  of  the  defendant,  unless  the  time 
shall  be  enlarged,  for  cause  shown,  by  a  judge  of  the  court, 
to  file  his  answer  or  other  defense  to  the  bill  in  the  clerk's  office 
within  the  time  named  in  the  subpoena  as  required  by  rule  12. 
In  default  thereof  the  plaintiff  may,  at  his  election,  take  an 
order  as  of  course  that  the  bill  be  taken  pro  confesso;  and 
thereupon  the  cause  shall  be  proceeded  in  ex  parte. 

Rule  17.  Decree  pro  confesso  to  be  followed  by  final  decree — 
Setting  aside  Default.  When  the  bill  is  taken  pro  confesso  the 
court  may  proceed  to  a  final  decree  at  any  time  after  the  expira- 
ation  of  thirty  days  after  the  entry  of  the  order  pro  confesso, 
and  such  decree  shall  be  deemed  absolute,  unless  the  court 
shall,  at  the  same  term,  set  aside  the  same,  or  enlarge  the  time 
for  filing  the  answer,  upon  cause  shown  upon  motion  and  affi- 
davit. No  such  motion  shall  be  granted,  unless  upon  the  pay- 
ment of  the  costs  of  the  plaintiff  up  to  that  time,  or  such  part 
thereof  as  the  court  shall  deem  reasonable,  and  unless  the  de- 
fendant shall  undertake  to  file  his  answer  within  such  time 
as  the  court  shall  direct,  and  submit  to  such  other  terms  as 
the  court  shall  direct,  for  the  purpose  of  speeding  the  cause. 

Rule  18.  Pleadings — Techincal  forms  abrogated.  Unless 
otherwise  prescribed  by  statute  or  these  rules  the  technical 
forms  of  pleadings  in  equity  are  abolished. 

Rule  19.  Amendments  generally.  The  court  may  at  any  time, 
in  furtherance  of  justice,  upon  such  terms  as  may  be  just,  per- 
mit any  process,  proceeding,  pleading  or  record  to  be  amended, 
or  material  supplemental  matter  to  be  set  forth  in  an  amended 
or  supplemental  pleading.     The  court,  at  every  stage  of  the 


214  EQUITY   PLEADING    AND   PRACTICE 

proceeding  must  disregard  any  error  or  defect  in  the  proceed- 
ing which  does  not  affect  the  substantial  rights  of  the  parties. 

Rule  20.  Further  and  Pai*ticular  statement  in  pleading  may 
be  required.  A  further  and  better  statement  of  the  nature  of 
the  claim  or  defense,  or  further  and  better  particulars  of  any 
matter  stated  in  any  pleading,  may  in  any  case  be  ordered, 
upon  such  terms,  as  to  costs  and  otherwise,  as  may  be  just. 

Rule  21.  Scandal  and  impertinence.  The  right  to  except  to 
bills,  answers,  and  other  proceedings  for  scandal  or  imperti- 
nence shall  not  obtain,  but  the  court  may,  upon  motion  or  its 
own  initiative,  order  any  redundant,  impertinent  or  scandalous 
matter  stricken  out,  upon  such  terms  as  the  court  shall  think  fit. 

Rule  22.  Action  at  law  erroneously  begun  as  suit  in  equity — 
Transfer.  If  at  any  time  it  appear  that  a  suit  commenced  in 
equity  should  have  been  brought  as  an  action  on  the  law  side 
of  the  court,  it  shall  be  forthwith  transferred  to  the  law  side 
and  be  there  proceeded  with,  with  only  such  alteration  in  the 
pleadings  as  shall  be  essential. 

Rule  23.  Matters  ordinarily  determinable  at  law,  when  aris- 
ing in  suit  in  equity  to  be  disposed  of  therein.  If  in  a  suit  in 
equity  a  matter  ordinarily  determinable  at  law  arises,  such 
matter  shall  be  determined  in  that  suit  according  to  the  prin- 
ciples applicable,  without  sending  the  case  or  question  to  the 
law  side  of  the  court. 

Rule  24.  Signature  of  counsel.  Every  bill  or  other  pleading 
shall  be  signed  individually  by  one  or  more  solicitors  of  record, 
and  such  signatures  shall  be  considered  as  a  certificate  by  each 
solicitor  that  he  has  read  the  pleading  so  signed  by  him;  that 
upon  the  instructions  laid  before  him  regarding  the  case  there 
is  good  ground  for  the  same ;  that  no  scandalous  matter  is  in- 
serted in  the  pleading;  and  that  it  is  not  interposed  for  delay. 

Rule  25.  Bill  of  complaint — Contents.  Hereafter  it  shall  De 
sufficient  that  a  bill  in  equity  shall  contain,  in  addition  to  the 
usual  caption : 

First,  the  full  name,  when  known,  of  each  plaintiff  and  de- 
fendant, and  the  citizenship  and  residence  of  each  party.  If 
any  party  be  under  any  disability  that  fact  shall  be  stated. 


FEDERAL  EQUITY  RULES  215 

Second,  a  short  and  plain  statement  of  the  grounds  upon 
which  the  court 's  jurisdiction  depends. 

Third,  a  short  and  simple  statement  of  the  ultimate  facts 
upon  which  the  plaintiff  asks  relief,  omitting  any  mere  state- 
ment of  evidence. 

Fourth,  if  there  are  persons  other  than  those  named  as  de- 
fendants who  appear  to  be  proper  parties,  the  bill  should  state 
why  they  are  not  made  parties — as  that  they  are  not  within  the 
jurisdiction  of  the  court,  or  cannot  be  made  parties  without 
ousting  the  jurisdiction. 

Fifth,  a  statement  of  and  prayer  for  any  special  relief  pend- 
ing the  suit  or  on  final  hearing,  which  may  be  stated  and  sought 
in  alternative  forms.  If  special  relief  pending  the  suit  be  de- 
sired the  bill  should  be  verified  by  the  oath  of  the  plaintiff,  or 
someone  having  knovv'ledge  of  the  facts  upon  which  such  relief 
is  asked. 

Rule  26.  Joinder  of  causes  of  action.  The  plaintiff  may  join 
in  one  bill  as  many  causes  of  action,  cognizable  in  equity,  as 
he  may  have  against  the  defendant.  But  when  there  are  more 
than  one  plaintiff,  the  causes  of  action  joined  must  be  joint, 
and  if  there  be  more  than  one  defendant  the  liability  must  be 
one  asserted  against  all  of  the  material  defendants,  or  sufficient 
grounds  must  appear  for  uniting  the  causes  of  action  in  order 
to  promote  the  conveniejit  administration  of  justice.  If  it  ap- 
pear that  any  such  causes  of  action  cannot  be  conveniently  dis- 
posed of  together,  the  court  may  order  separate  trials. 

Eule27.  Stocl^older's  Bill.  Every  bill  brought  by  one  or 
more  stockholders  in  a  corporation  against  the  corporation  and 
other  parties,  founded  on  rights  which  may  properly  be  as- 
serted by  the  corporation,  must  be  verified  by  oath,  and  must 
contain  an  allegation  that  the  plaintiff  was  a  shareholder  at 
the  time  of  the  transaction  of  which  he  complains,  or  that  his 
share  had  devolved  on  him  since  by  operation  of  law,  and  that 
the  sviit  is  not  a  collusive  one  to  confer  on  a  court  of  the  United 
States  jurisdiction  of  a  case  of  which  it  would  not  otherwise 
have  cognizance.  It  must  also  set  forth  with  particularity  the 
efforts  of  the  plaintiff  to  secure  such  action  as  he  desires  on  the 
part  of  the  managing  directors  or  trustees,  and,  if  necessary,  of 


216  EQUITY  PLEADING  AND  PRACTICE 

tho  shareholders,  aud  the  causes  of  his  failure  to  obtain  such 
action,  or  the  reasons  for  not  making  such  effort. 

Rule  28.  Amendment  of  bill  as  of  course.  The  plaintiff  may, 
as  of  course,  amend  his  bill  before  the  defendant  has  responded 
thereto,  but  if  such  amendment  be  filed  after  any  copy  has 
issued  from  the  clerk's  office,  the  plaintiff  at  his  own  cost  shall 
furnish  to  the  solicitor  of  record  of  each  opposing  party  a  copy 
of  the  bill  as  amended,  unless  otherwise  ordered  by  the  court 
or  judge. 

After  pleading  filed  by  any  defendant,  plaintiff  may  amend 
only  by  consent  of  the  defendant  or  leave  of  the  court  or  judge. 

Rule  29.  Defenses — How  presented.  Demurrers  and  pleas 
are  abolished.  Every  defense  in  point  of  law  arising  upon  the 
face  of  the  bill,  whether  for  misjoinder,  nonjoinder,  or  insuf- 
ficiency of  fact  to  constitute  a  valid  cause  of  action  in  equity, 
which  might  heretofore  have  been  made  by  demurrer  or  plea, 
shall  be  made  by  motion  to  dismiss  or  in  the  answer ;  and  every 
such  point  of  law  going  to  the  whole  or  a  material  part  of  the 
cause  or  causes  of  action  stated  in  the  bill  may  be  called  up  and 
disposed  of  before  final  hearing  at  the  discretion  of  the  court. 
Every  defense  heretofore  presentable  by  plea  in  bar  or  abate- 
ment shall  be  made  in  the  answer  and  may  be  separately  heard 
and  disposed  of  before  the  trial  of  the  principal  case  in  the  dis- 
cretion of  the  court.  If  the  defendant  move  to  dismiss  the  bill 
or  any  part  thereof,  the  motion  may  be  set  down  for  hearing  by 
either  party  upon  five  daj's'  notice,  and,  if  it  be  denied,  answer 
shall  be  filed  within  five  days  thereafter  or  a  decree  pro  con- 
fesso  entered. 

Rule  30,  Answer — Contents — Counterclaim.  The  defendant 
in  his  answer  shall  in  short  and  simple  terms  set  out  his  defense 
to  each  claim  asserted  by  the  bill,  omitting  any  mere  statement 
of  evidence  and  avoiding  any  general  denial  of  the  averments 
oi  the  bill,  but  specifically  admitting  or  denjang  or  explaining 
the  facts  upon  which  the  plaintiff  relies,  unless  the  defendant  is 
witJiout  knowledge,  in  which  case  he  shall  so  state,  such  state- 
ment operating  as  a  denial.  Averments  other  than  of  value 
or  amount  of  damage,  if  not  denied,  shall  be  deemed  confessed, 
except  as  against  an  infant,  lunatic  of  other  person  non  compos 


FEDER.VL  EQUITY  RULES  21  7 

and  not  under  guardianship,  but  the  answer  may  be  amended, 
by  leave  of  the  court  or  judge,  upon  reasonable  notice,  so  as  to 
put  any  averment  in  issue,  when  justice  requires  it.  The 
answer  may  state  as  many  defenses,  in  the  alternative,  regard- 
less of  consistency,  as  the  defendant  deems  essential  to  his 
defense. 

The  answer  must  state  in  short  and  simple  form  any  counter- 
claim arising  out  of  the  transaction  which  is  the  subject  matter 
of  the  suit,  and  may,  without  cross-bill,  set  out  any  set-off  or 
counterclaim  against  the  plaintiff  which  might  be  the  subject 
of  an  independent  suit  in  equity  against  him,  and  such  set-off 
or  coimterclaim,  so  set  up,  shall  have  the  same  effect  as  a 
cross-suit,  so  as  to  enable  the  court  to  pronounce  a  final  judg- 
ment in  the  same  suit  both  on  the  original  and  cross-claims. 

Rule   31.     Reply — When  required — When   cause   at   issue. 

Unless  the  answer  assert  a  set-off  or  counterclaim,  no  reply 
shall  be  required  without  special  order  of  the  court  or  judge, 
but  the  cause  shall  be  deemed  at  issue  upon  the  filing  of  the 
answer,  and  any  new  or  affirmative  matter  therein  shall  be 
deemed  to  be  denied  by  the  plaintiff.  If  the  answer  include  a 
set-off  or  counterclaim  the  party  against  whom  it  is  asserted 
shall  reply  within  ten  days  after  the  filing  of  the  answer,  unless 
a  longer  time  be  allowed  by  the  court  or  judge.  If  the  counter- 
claim is  one  which  affects  the  rights  of  other  defendants  they 
or  their  solicitors  shall  be  served  with  a  copy  of  the  same  within 
ten  days  from  the  filing  thereof,  and  ten  days  shall  be  accorded 
to  sach  defendants  for  filing  a  reply.  In  default  of  a  reply,  a 
decree  pro  confcsso  on  the  counterclaim  may  be  entered  as  in 
default  of  an  answer  to  the  bill. 

Rule  32.  Answer  to  amended  bill.  In  every  case  where  an 
amendment  to  the  bill  shall  be  made  after  answer  filed,  the 
defendant  shall  put  in  a  new  or  supplemental  answer  within 
ten  days  after  that  on  which  the  amendment  or  amended  bill 
is  filed,  unless  the  time  is  enlarged  or  it  is  otherwise  ordered  by 
a  judge  of  the  court ;  and  upon  a  default,  the  like  proceedings 
ma^'  ]ye  had  as  upon  an  omission  to  put  in  an  answer. 

Rule  33.  Testing  sufficiency  of  defense.  Exceptions  for  in- 
sufficiency of  an  answer  are  abolished.     But  if  an  answer  set 


218  EQUITY   PLEADING    AND   PRACTICE 

up  iin  afiirmative  defense,  set-off  or  counterclaim,  the  plaintia! 
may,  upon  five  days'  notice,  or  such  further  time  as  the  court 
may  allow,  test  the  sufficiency  of  the  same  by  motion  to  strike 
out.  If  found  insufficient  but  amendable  the  court  may  allow 
an  amendment  upon  terms,  or  strike  out  the  matter. 

Rule  34.  Supplemental  pleading.  Upon  application  of  either 
porty  the  court  or  judge  may,  upon  reasonable  notice  and  such 
terms  as  are  just,  permit  him  to  file  and  serve  a  supplemental 
pleading,  alleging  material  facts  occurring  after  his  former 
pleading,  or  of  which  he  was  ignorant  when  it  was  made,  in- 
cluding the  judgment  or  decree  of  a  competent  court  rendered 
after  the  commencement  of  a  suit  determining  the  matters  in 
controversy  or  a  part  thereof. 

Rule  35.  BiUs  of  revivor  and  supplemental  bills — Form.  It 
shall  not  be  necessary  in  any  bill  of  revivor  or  supplemental  bill 
to  set  forth  any  of  the  statements  in  the  original  suit,  unless  the 
special  circumstances  of  the  case  may  require  it. 

Rule  36.  Ofl&cers  before  whom  pleadings  verified.  Every 
pleading  which  is  required  to  be  sworn  to  by  statute,  or  these 
rules,  may  be  verified  before  any  justice  or  judge  of  any  court 
of  the  United  States,  or  of  any  State  or  Territory,  or  of  the  Dis- 
trict of  Columbia,  or  any  clerk  of  any  court  of  the  United 
States  or  of  any  Territory,  or  of  the  District  of  Columbia,  or 
any  notary  public. 

Rule  37.  Parties  generally— Intervention.  Every  action  shaU 
be  prosecuted  in  the  name  of  the  real  party  in  interest,  but  an 
executor,  administrator,  guardian,  trustee  of  an  express  trust, 
a  party  with  whom  or  in  whose  name  a  contract  has  been  made 
for  the  benefit  of  another,  or  a  party  expressly  authorized  by 
statute,  may  sue  in  his  own  name  without  joining  with  him  the 
party  for  whose  benefit  the  action  is  brought.  All  persons 
having  an  interest  in  the  subject  of  the  action  and  in  obtaining 
the  relief  demanded  may  join  as  plaintiffs,  and  any  person  may 
be  made  a  defendant  who  has  or  claims  an  interest  adverse  to 
the  plaintiff.  Any  person  may  at  any  time  be  made  a  party 
if  his  presence  is  necessary  or  proper  to  a  complete  determina- 
tion of  the  cause.  Persons  having  a  united  interest  must  be 
joined  on  the  same  side  as  plaintiffs  or  defendants,  but  when 


FEDERAL  EQUITY  RULES  219 

any  one  refuses  to  join,  he  may  for  such  reason  be  made  a 
defendant. 

Anyone  claiming  an  interest  in  the  litigation  may  at  any 
time  be  permitted  to  assert  his  right  by  intervention,  but  the 
intervention  shall  be  in  subordination  to,  and  in  recognition 
of,  the  propriety  of  the  main  proceeding. 

Rule  38.  Representatives  of  cla.ss.  When  the  question  is 
one  of  common  or  general  interest  to  many  persons  constituting 
a  class  so  numerous  as  to  make  it  impracticable  to  bring  them 
all  before  the  court,  one  or  more  may  sue  or  defend  for  the 
whole. 

Rule  30.  Absence  of  persons  who  would  be  proper  parties. 

In  all  cases  where  it  shall  appear  to  the  court  that  persons, 
who  might  otherwise  be  deemed  proper  parties  to  the  suit, 
cannot  be  made  parties  by  reason  of  their  being  out  of  the  juris- 
diction of  the  court,  or  incapable  otherwise  of  being  made  par- 
ties, or  because  their  joinder  would  oust  the  jurisdiction  of  the 
court  as  to  the  parties  before  the  court,  the  court  may,  in  its 
discretion,  proceed  in  the  cause  without  making  such  persons 
parties ;  and  in  such  cases  the  decree  shall  be  without  prejudice 
to  the  rights  of  the  absent  parties. 

Rule  40.  Noniinal  parties.  Where  no  account,  payment,  con- 
veyance, or  other  direct  relief  is  sought  against  a  party  to  a 
suit,  not  being  an  infant,  the  party,  upon  service  of  the  sup- 
poena  upon  him,  need  not  appear  and  answer  the  bill,  unless  the 
plaintiff  specially  requires  him  to  do  so  by  the  prayer ;  but  he 
may  appear  and  answer  at  his  option;  and  if  he  does  not  ap- 
pear and  answer  he  shall  be  bound  by  all  the  proceedings  in  the 
cause.  If  the  plaintiff  shall  require  him  to  appear  and  answer 
he  shall  be  entitled  to  the  costs  of  all  the  proceedings  against 
him,  unless  the  court  shall  otherwise  direct. 

Rule  41.  Suit  to  execute  trusts  of  will — Heir  as  party.    In 

suits  to  execute  the  trusts  of  a  will,  it  shall  not  be  necessary  to 
make  the  heir  at  law  a  party ;  but  the  plaintiff  shall  be  at  liberty 
to  make  the  heir  at  law  a  party  where  he  desires  to  have  the 
will  established  against  him. 

Rule  42.  Joint  and  several  demands.  In  all  cases  in  which 
the  plaintiff  has  a  joint  and  several  demand  against  several 


220  EQUITY   PLEADING   AND   PRACTICE 

persons,  either  as  principals  or  sureties,  it  shall  not  be  neces- 
sary to  bring  before  the  eonrt  as  parties  to  a  suit  concerning 
such  demand  all  the  persons  liable  thereto;  but  the  plaintiff 
may  proceed  against  one  or  more  of  the  persons  severally  liable. 

Rule  43.  Defect  of  parties — Resisting  objection.     Where  the 

defendant  shall  by  his  answer  suggest  that  the  bill  of  com- 
plaint is  defective  for  want  of  parties,  the  plaintiff  may,  within 
fourteen  days  after  answer  filed,  set  down  the  cause  for  argu- 
ment as  a  motion  upon  that  objection  only;  and  where  the 
plaintiff  shall  not  so  set  down  his  cause,  but  shall  proceed  there- 
with to  a  hearing,  notwithstanding  an  objection  for  want  of 
parties  taken  by  the  answer,  he  shall  not  at  the  hearing  of  the 
cause,  if  the  defendant's  objection  shall  then  be  allowed,  be 
entitled  as  of  course  to  an  order  to  amend  his  bill  by  adding 
parties ;  but  the  court  shall  be  at  liberty  to  dismiss  the  bill,  or 
to  allow  an  amendment  on  such  terms  as  justice  may  require. 

Rule  44.  Defect  of  parties — Tardy  objection.  If  a  defend- 
ant shall,  at  the  hearing  of  a  cause,  object  that  a  suit  is  defec- 
tive for  want  of  parties,  not  having  by  motion  or  answer  taken 
the  objection  and  therein  specified  by  name  or  description  the 
parties  to  whom  the  objection  applies,  the  court  shall  be  at 
liberty  to  make  a  decree  saving  the  rights  of  the  absent  parties. 

Rule  45.  Death  of  party — Reviver.  In  the  event  of  the  death 
of  either  party  the  court  may,  in  a  proper  case,  upon  motion, 
order  the  suit  to  be  revived  by  the  substitution  of  the  proper 
parties.  If  the  successors  or  representatives  of  the  deceased 
party  fail  to  make  such  application  within  a  reasonable  time, 
then  any  other  party  may,  on  motion,  apply  for  such  relief,  and 
the  court,  upon  any  such  motion,  may  make  the  necessary  or- 
ders for  notice  to  the  parties  to  be  substituted  and  for  the 
filing  of  such  pleadings  or  amendments  as  may  be  necessary. 

Rule  46.  Trial — Testimony  usually  taken  in  open  court — 
Rulings  on  objections  to  evidence.  In  all  trials  in  equity  the 
testimony  of  witnesses  shall  be  taken  orally  in  open  court, 
except  as  otherwise  provided  by  statute  or  these  rules.  The 
court  shall  pass  upon  the  admissibility  of  all  evidence  offered 
as  in  actions  at  law.  When  evidence  is  offered  and  excluded, 
and  the  party  against  whom  the  ruling  is  made  excepts  thereto 


FEDERAL  EQUITY  RULES  221 

at  the  time,  the  court  shall  take  and  report  so  much  thereof, 
or  make  such  a  statement  respecting  it,  as  will  clearly  show  the 
character  of  the  evidence,  the  form  in  which  it  was  offered, 
the  objection  made,  the  ruling,  and  the  exception.  If  the 
appellate  court  shall  be  of  opinion  that  the  evidence  should 
have  been  admitted,  it  shall  not  reverse  the  decree  unless  it 
be  clearly  of  opinion  that  material  prejudice  will  result  from 
an  affirmance,  in  which  event  it  shall  direct  such  further  steps 
as  justice  may  require. 

Rule  47.  Depositions — To  be  taken  in  exceptional  instances. 

The  court,  upon  application  of  either  party,  when  allowed  by 
statute,  or  for  good  and  exceptional  cause  for  departing  from 
the  general  rule,  to  be  shown  by  affidavit,  may  permit  the  depo- 
sition of  named  witnesses,  to  be  used  before  the  court  or  upon 
a  reference  to  a  master,  to  be  taken  before  an  examiner  or 
other  named  officer,  upon  the  notice  and  terms  specified  in  the 
order.  All  depositions  taken  under  a  statute,  or  under  any 
such  order  of  the  court,  shall  be  taken  and  filed  as  follows, 
unless  otherwise  ordered  by  the  court  or  judge  for  good  cause 
shown:  Those  of  the  plaintiff  within  sixty  days  from  the  time 
the  cause  is  at  issue ;  those  of  the  defendant  within  thirty  days 
from  the  expiration  of  the  time  for  the  filing  of  plaintiff's 
depositions;  and  rebutting  depositions  by  either  party  within 
twenty  days  after  the  time  for  taking  original  depositions 
expires. 

Rule  48.  Testimony  of  expert  witnesses  in  patent  and  trade- 
mark cases.  In  a  case  involving  the  validity  or  scope  of  a 
patent  or  trade-mark,  the  district  court  may,  upon  petition, 
order  that  the  testimony  in  chief  of  expert  witnesses,  whose 
testimony  is  directed  to  matters  of  opinion,  be  set  forth  in 
affidavits  and  filed  as  follows:  Those  of  the  plaintiff  within 
forty  days  after  the  cause  is  at  issue ;  those  of  the  defendant 
within  twenty  days  after  plaintiff's  time  has  expired;  and  re- 
butting affidavits  within  fifteen  days  after  the  expiration  of 
the  time  for  filing  original  affidavits.  Should  the  opposite 
party  desire  the  production  of  any  affiant  for  cross-examina- 
tion, the  court  or  judge  shall,  on  motion,  direct  that  said  cross- 
examination  and  any  rc-examination  take  place  before  the 
court  upon  the  trial,  and  unless  the  affiant  is  produced  and  sub- 


222  EQUITY   PLEADING   AND   PRACTICE 

mits  to  cross-examination  in  compliance  with  such  direction, 
his  affidavit  shall  not  be  used  as  evidence  in  the  cause. 

Rule  49.  Evidence  taken  before  examiners,  etc.  All  evi- 
dence offered  before  an  examiner  or  like  officer,  together 
Avith  an}'  objections,  shall  be  saved  and  returned  into  the  court. 
Depositions,  whether  upon  oral  examination  before  an  examiner 
or  like  officer  or  otherwise,  shall  be  taken  upon  questions  and 
answers  reduced  to  writing,  or  in  the  form  of  narrative,  and 
the  witness  shall  be  subject  to  cross  and  re-examination. 

Rule  50.  Stenographer — Appointment — Fees.  When  deemed 
necessary  by  the  court  or  officer  taking  testimony,  a  stenog- 
rapher may  be  appointed  who  shall  take  down  testimony  in 
shorthand,  and,  if  required,  transcribe  the  same.  His  fee  shall 
be  fixed  by  the  court  and  taxed  ultimately  as  costs.  The  ex- 
pense of  taking  a  deposition,  or  the  cost  of  a  transcript,  shall 
be  advanced  by  the  party  calling  the  witness  or  ordering  the 
transcript. 

Rule  51.  Evidence  taken  before  examiners,  etc.  Objection 
to  the  evidence,  before  an  examiner  or  like  officer,  shall  be  in 
short  form,  stating  the  grounds  of  objection  relied  upon,  but 
no  transcript  filed  by  such  officer  shall  include  argument  or 
debate.  The  testimony  of  each  witness,  after  being  reduced 
to  writing,  shall  be  read  over  to  or  by  him,  and  shall  be  signed 
by  him  in  the  presence  of  the  officer ;  provided,  that  if  the  wit- 
ness shall  refuse  to  sign  his  deposition  so  taken,  the  officer  shall 
sign  the  same,  stating  upon  the  record  the  reasons,  if  any, 
assigned  by  the  witness  for  such  refusal.  Objection  to 
any  question  or  questions  shall  be  noted  by  the  officer  upon  the 
deposition,  but  he  shall  not  have  power  to  decide  on  the  com- 
petency or  materiality  or  relevancy  of  the  questions..  The 
court  shall  have  power,  and  it  shall  be  its  duty,  to  deal  with 
the  costs  of  incompetent  and  immaterial  or  irrelevant  deposi- 
tions, or  parts  of  them,  as  may  be  just. 

Rule  52.  Attendance  of  witnesses  before  commissioner,  mas- 
ter or  examiner.  Witnesses  who  live  within  the  district,  and 
whose  testimony  may  be  taken  out  of  court  by  these  rules,  may 
be  summoned  to  appear  befor  a  commissioner  appointed  to  take 
testimony,  or  before  a  master  or  examiner  appointed  in  any 


FEDERAL  EQUITY  RULES  223 

cause  by  subpoena  in  the  usual  form,  which  may  be  issued 
by  the  clerk  in  blank  and  filled  up  by  the  party  praying  the 
same,  or  by  the  commissioner,  master,  or  examiner,  requiring 
the  attendance  of  the  witnesses  at  the  time  and  place  specified, 
who  shall  be  allowed  for  attendance  the  same  compensation  as 
for  attendance  in  court ;  and  if  any  witness  shall  refuse  to  ap- 
pear or  give  evidence  it  shall  be  deemed  a  contempt  of  the 
court,  which  being  certified  to  the  clerk's  office  by  the  commis- 
sioner, master,  or  examiner,  an  attachment  may  issue  thereupon 
by  order  of  the  court  or  of  any  judge  thereof,  in  the  same  man- 
ner as  if  the  contempt  were  for  not  attending,  or  for  refusing 
to  give  testimony  in,  the  court. 

In  case  of  refusal  of  witnesses  to  attend  or  be  sworn  or  to 
answer  any  question  put  by  the  commissioner,  master  or  ex- 
aminer or  by  counsel  or  solicitor,  the  same  practice  shall  be 
adopted  as  is  now  practiced  with  respect  to  witnesses  to  be  pro- 
duced on  examination  before  an  examiner  of  said  court  on 
written  interrogatories. 

Rule  53.  Notice  of  taking-  testimony  before  examiner,  etc. 

Notice  shall  be  given  by  the  respective  counsel  or  parties  to 
the  opposite  counsel  or  parties  of  the  time  and  place  of  exami- 
nation before  an  examiner  or  like  officer  for  such  reasonable 
time  as  the  court  or  officer  may  fix  by  order  in  each  case. 

Rule  54.  Deposition  under  rev.  stat.  §§  863,  865,  866,  867,— 
Cross-examination.  After  a  cause  is  at  issue,  depositions  may 
be  taken  as  provided  by  sections  863,  865,  866  and  867,  Revised 
Statutes.  But  if  in  any  case  no  notice  has  been  given  the  oppo- 
site party  of  the  time  and  place  of  taking  the  deposition,  he 
shall,  upon  application  and  notice,  be  entitled  to  have  the  wit- 
ness examined  orally  before  the  court,  or  to  a  cross  examina- 
tion before  an  examiner  or  like  officer,  or  a  new  deposition 
taken  with  notice,  as  the  court  or  judge  under  all  the  circum- 
stances shall  order. 

Rule  55.  Deposition  deemed  published  when  filed.  Upon  the 
filing  of  any  deposition  or  affidavit  taken  under  these  rules  or 
any  statute,  it  shall  be  deemed  published,  unless  otherwise  or- 
dered by  the  court. 


224  EQUITY   PLEADING   AND   PRACTICE 

Rule  56.  On  expiration  of  time  for  depositions,  case  goes  on 
trial  calendar.  After  the  time  has  elapsed  for  taking  and  fil- 
ing depositions  under  these  rules,  the  ease  shall  be  placed  on 
the  trial  calendar.  Thereafter  no  further  testimony  by  deposi- 
tion shall  be  taken  except  for  some  strong  reason  shown  by 
affidavit.  In  every  such  application  the  reason  why  the  tes- 
timony of  the  witness  cannot  be  had  orally  on  the  trial,  and 
why  his  deposition  has  not  been  before  taken,  shall  be  set  forth, 
together  with  the  testimony  which  it  is  expected  the  witness 
will  give. 

Ride  57.  Continuances.  After  a  cause  shall  be  placed  on  the 
trial  calendar  it  may  be  passed  over  to  another  day  of  the  same 
term,  by  consent  of  counsel  or  order  of  the  court,  but  shall  not 
be  continued  beyond  the  term  save  in  exceptional  cases  by  order 
of  the  court  upon  good  cause  shown  by  affidavit  and  upon  such 
terms  as  the  court  shall  in  its  discretion  impose.  Continuances 
beyond  the  term  by  consent  of  the  parties  shall  be  allowed  on 
condition  only  that  a  stipulation  be  signed  by  counsel  for  all 
the  parties  and  that  all  costs  incurred  theretofore  be  paid. 
Thereupon  an  order  shall  be  entered  dropping  the  case  from 
the  trial  calendar,  subject  to  reinstatement  within  one  year 
upon  application  to  the  court  by  either  party,  in  which  event 
it  shall  be  heard  at  the  earliest  convenient  day.  If  not  so  re- 
instated within  the  year,  the  suit  shall  be  dismissed  without 
prejudice  to  a  new  one. 

Rule  58.  Discovery — Interrogatories — Inspection  and  pro- 
duction of  documents — Admission  of  execution  or  genuineness. 
The  plaintiff  at  any  time  after  filing  the  bill  and  not  later  than 
twentj'^-one  days  after  the  joinder  of  issue,  and  the  defendant 
at  any  time  after  filing  his  answer  and  not  later  than  twenty-one 
days  after  the  joinder  of  issue,  and  either  party  at  any  time 
thereafter  by  leave  of  the  court  or  judge,  may  file  interroga- 
tories in  writing  for  the  discovery  by  the  opposite  party  or 
parties  of  facts  and  documents  material  to  the  support  or  de- 
fense of  the  cause,  with  a  note  at  the  foot  thereof  stating  which 
of  the  interrogatories  each  of  the  parties  is  required  to  answer. 
But  no  party  shall  file  more  than  one  set  of  interrogatories  to 
the  same  party  without  leave  of  the  court  or  judge. 

If  any  party  to  the  cause  is  a  public  or  private  corporation, 


FEDERAL  EQUITY  RULES  225 

any  opposite  party  may  apply  to  the  court  or  judge  for  an  order 
allowing  him  to  file  interrogatories  to  be  answered  by  any 
officer  of  the  corporation,  and  an  order  may  be  made  accord- 
ingly for  the  examination  of  such  officer  as  may  appear  to  be 
proper  upon  such  interrogatories  as  the  court  or  judge  shall 
think  fit. 

Copies  shall  be  filed  for  the  use  of  the  interrogated  party 
and  shall  be  sent  by  the  clerk  to  the  respective  solicitors  of 
record,  or  to  the  last  laiown  address  of  the  opposite  party  if 
there  be  no  record  solicitor. 

Interrogatories  shall  be  answered,  and  the  answers  filed  in 
the  clerk's  office,  within  fifteen  days  after  they  have  been 
served,  unless  the  time  be  enlarged  by  the  court  or  judge. 
Each  interrogatory  shall  be  answered  separately  and  fully  and 
the  answers  shall  be  in  w^riting,  under  oath,  and  signed  by  the 
party  or  corporate  officer  interrogated.  Within  ten  days  after 
the  service  of  interrogatories,  objections  to  them,  or  any  of 
them,  may  be  presented  to  the  court  or  judge,  with  proof  of 
notice  of  the  purpose  so  to  do,  and  answers  shall  be  deferred 
until  the  objections  are  determined,  which  shall  be  at  as  early 
a  time  as  is  practicable.  In  so  far  as  the  objections  are  sus- 
tained, answers  shall  not  be  required. 

The  court  or  judge,  upon  motion  and  reasonable  notice,  may 
make  all  such  orders  as  may  be  appropriate  to  enforce  answers 
to  interrogatories  or  to  effect  the  inspection  or  production  of 
documents  in  the  possession  of  either  party  and  containing 
evidence  material  to  the  cause  of  action  or  defense  of  his  adver- 
sary. Any  party  failing  or  refusing  to  comply  with  such  an 
order  shall  be  liable  to  attachment,  and  shall  also  be  liable,  if 
a  plaintiff,  to  have  his  bill  dismissed,  and,  if  a  defendant,  to 
have  his  answer  stricken  out  and  be  placed  in  the  same  situa- 
tion as  if  he  had  failed  to  answer. 

By  a  demand  served  ten  days  before  the  trial,  either  party 
may  call  on  the  other  to  admit  in  writing  the  execution  or 
genuineness  of  any  document,  letter  or  other  writing,  saving  all 
just  exceptions ;  and  if  such  admission  be  not  made  within  five 
days  after  such  service,  the  costs  of  proving  the  document, 
letter  or  writing  shall  be  paid  by  the  party  refusing  or  neglect- 
ing to  make  ^uch  admission,  unless  at  the  trial  the  court  shall 
find  that  the  refusal  or  neglect  was  reasonable, 
E.  p.— 16 


226  EQUITY  PLEADING  AND  PRACTICE 

Rule  59.  Reference  to  master — Exceptional,  not  usual.  Save 
in  matters  of  account,  a  reference  to  a  master  shall  be  the  ex- 
ception, not  the  rule,  and  shall  be  made  only  upon  a  showing 
that  some  exceptional  conditional  requires  it.  AVhen  such  a 
reference  is  made,  the  party  at  whose  instance  or  for  whose 
benefit  it  is  made  shall  cause  the  order  of  reference  to  be  pre- 
sented to  the  master  for  a  hearing  within  twenty  days  succeed- 
ing the  time  when  the  reference  was  made,  unless  a  longer  time 
be  specially  granted  by  the  court  or  judge ;  if  he  shall  omit  to 
do  so,  the  adverse  party  shall  be  at  liberty  forthwith  to  cause 
proceedings  to  be  had  before  the  master,  at  the  costs  of  the 
party  procuring  the  reference. 

Rule  60.  Proceedings  before  master.  Upon  every  such  ref- 
erence, it  shall  be  the  duty  of  the  master,  as  soon  as  he  reason- 
ably can  after  the  same  is  brought  before  him,  to  assign  a  time 
and  place  for  proceedings  in  the  same,  and  to  give  due  notice 
thereof  to  each  of  the  parties,  or  their  solicitors ;  and  if  either 
party  shall  fail  to  appear  at  the  time  and  place  appointed,  the 
master  shall  be  at  liberty  to  proceed  ex  parte,  or,  in  his  discre- 
tion, to  adjourn  the  examination  and  proceedings  to  a  future 
day,  giving  notice  to  the  absent  party  or  his  solicitor  of  such 
adjournment;  and  it  shall  be  the  duty  of  the  master  to  pro- 
ceed with  all  reasonable  diligence  in  every  such  reference, 
and  with  the  least  practicable  delay,  and  either  party  shall 
be  at  liberty  to  apply  to  the  court,  or  a  judge  thereof,  for  an 
order  to  the  master  to  speed  the  proceedings  and  to  make  his 
report,  and  to  certify  to  the  court  or  judge  the  reason  for 
any  delay. 

Rule  61.  Master's  report — Documents  identified  but  not  set 
forth.  In  the  reports  made  by  the  master  to  the  court,  no 
part  of  any  state  of  facts,  account,  charge,  affidavit,  deposition, 
examination,  or  answer  brought  in  or  used  before  him  shall 
be  stated  or  recited.  But  such  state  of  facts,  account,  charge, 
affidavit,  deposition,  examination,  or  answer  shall  be  identified, 
and  referred  to,  so  as  to  inform  the  court  what  state  of  facts, 
account,  charge,  affidavit,  deposition,  examination,  or  answer 
were  so  brought  in  or  used. 

Rule  62.  Powers  of  master.  The  master  shall  regulate  all 
the  proceedings  in  every  hearing  before  him,  upon  every  ref- 


FEDERAL  EQUITY  RULES  227 

erenee ;  and  he  shall  have  full  authority  to  examine  the  parties 
in  the  cause,  upon  oath,  touching  all  matters  contained  in  the 
reference;  and  also  to  require  the  production  of  all  books, 
papers,  writings,  vouchers,  and  other  documents  applicable 
thereto;  and  also  to  examine  on  oath,  viva  voce,  all  witnesses 
produced  by  the  parties  before  him,  or  by  deposition,  accord- 
ing to  the  acts  of  Congress,  or  otherwise,  as  here  provided; 
and  also  to  direct  the  mode  in  which  the  matters  requiring 
evidence  shall  be  proved  before  him;  and  generally  to  do  all 
other  acts,  and  direct  all  other  inquiries  and  proceedings  in 
the  matters  before  him,  which  he  may  deem  necessary  and 
proper  to  the  justice  and  merits  thereof  and  the  rights  of  the 
parties. 

Rule  63.  Form  of  accounts  before  master.  All  parties 
accounting  before  a  master  shall  bring  in  their  respective 
accounts  in  the  form  of  debtor  and  creditor;  and  any  of  the 
other  parties  who  shall  not  be  satisfied  with  the  account  so 
brought  in  shall  be  at  liberty  to  examine  the  accounting 
party  viva  voce,  or  upon  interrogatories,  as  the  master  shall 
direct. 

Rule  64.  Former  deposition,  etc,  may  be  used  before  master. 
All  affidavits,  depositions  and  documents  which  have  been 
previously  made,  read,  or  used  in  the  court  upon  any  proceed- 
ing in  any  cause  or  matter  may  be  used  before  the  master. 

Rule  65.  Claimants  before  master  examinable  by  him.  The 
master  shall  be  at  liberty  to  examine  any  creditor  or  other 
person  coming  in  to  claim  before  him,  either  upon  written  inter- 
rogatories or  viva  voce,  or  in  both  modes,  as  the  nature  of  the 
case  may  appear  to  him  to  require.  The  evidence  upon  such 
examinations  shall  be  taken  down  by  the  master,  or  by  some 
other  person  by  his  order  and  in  his  presence,  if  either  party 
requires  it,  in  order  that  the  same  may  be  used  by  the  court 
if  necessary. 

Rule  66.    Return  of  master's  report^Exceptions — Hearing. 

The  master,  as  soon  as  his  report  is  ready,  shall  return  the  same 
into  the  clerk's  office  and  the  day  of  the  return  shall  be  entered 
by  the  clerk  in  the  Equity  Docket.  The  parties  shall  have 
twenty  days  from  the  time  of  the  filing  of  the  report  to  file 


228  EQUITY   PLEADING   AND  PRACTICE 

exceptions  thereto,  and  if  no  exceptions  are  within  that  period 
filed  by  either  party,  the  report  shall  stand  confirmed.  If 
exceptions  are  filed,  they  shall  stand  for  hearing  before  the 
court,  if  then  in  session,  or,  if  not,  at  the  next  sitting  held 
thereafter,  by  adjournment  or  otherwise. 

Rule  67.  Costs  on  exceptions  to  master's  report.  In  order 
to  prevent  exceptions  to  reports  from  being  filed  for  frivolous 
causes,  or  for  mere  delay,  the  party  whose  exceptions  are  over- 
ruled, shall,  for  every  exception  overruled,  pay  five  dollars 
costs  to  the  other  party,  and  for  every  exception  allowed  shall 
be  entitled  to  the  same  costs. 

Rule  68.    Appointment  and  compensation  of  masters.    The 

district  courts  may  appoint  standing  masters  in  chancery  in 
their  respective  districts  (a  majority  of  all  the  judges  thereof 
concurring  in  the  appointment),  and  they  may  also  appoint  a 
master  pro  hac  vice  in  any  particular  case.  The  compensation 
to  be  allowed  to  every  master  shall  be  fixed  by  the  district 
court,  in  its  discretion,  having  regard  to  all  the  circumstances 
thereof,  and  the  compensation  shall  be  charged  upon  and  borne 
by  such  of  the  parties  in  the  cause  as  the  court  shall  direct. 
The  master  shall  not  retain  his  report  as  security  for  his  com- 
pensation ;  but  when  the  compensation  is  allowed  by  the  court, 
he  shall  be  entitled  to  an  attachment  for  the  amoimt  against 
the  party  who  is  ordered  to  pay  the  same,  if,  upon  notice 
thereof,  he  does  not  pay  it  within  the  time  prescribed  by  the 
court- 
Rule  69.  Petition  for  rehearing.  Every  petition  for  a 
rehearing  shall  contain  the  special  matter  or  cause  on  which 
such  rehearing  is  applied  for,  shall  be  signed  by  counsel,  and 
the  facts  therein  stated,  if  not  apparent  on  the  record,  shall 
be  verified  by  the  oath  of  the  party  or  by  some  other  person. 
No  rehearing  shall  be  granted  after  the  term  at  which  the 
final  decree  of  the  court  shall  have  been  entered  and  recorded, 
if  an  appeal  lies  to  the  Circuit  Court  of  Appeals  or  the 
Supreme  Court.  But  if  no  appeal  lies,  the  petition  may  be 
admitted  at  any  time  before  the  end  of  the  next  term  of  the 
court,  in  the  discretion  of  the  court. 


FEDERAL  EQUITY  RULES  229 

Rule  70.  Suits  by  or  against  incompetents.  Guardians  ad 
litem  to  defend  a  suit  may  be  appointed  by  the  court,  or  by 
any  judge  thereof,  for  infants  or  other  persons  who  are  under 
guardianship,  or  otherwise  incapable  of  suing  for  themselves. 
All  infants  and  other  persons  so  incapable  may  sue  by  their 
guardians,  if  any,  or  by  their  prochein  ami;  subject,  however, 
to  such  orders  as  the  court  or  judge  may  direct  for  the  pro- 
tection of  infants  and  other  persons. 

Rule  71.  Form  of  decree.  In  drawing  up  decrees  and 
orders,  neither  the  bill,  nor  answer,  nor  other  pleadings,  nor 
any  part  thereof,  nor  the  report  of  any  master,  nor  any  other 
prior  proceeding,  shall  be  recited  or  stated  in  the  decree  or 
order;  but  the  decree  and  order  shall  begin,  in  substance,  as 
follows:  "This  cause  came  on  to  be  heard  (or  to  be  further 
heard,  as  the  case  may  be)  at  this  term,  and  was  argued  by 
counsel;  and  thereupon,  upon  consideration  thereof,  it  was 
ordered,  adjudged  and  decreed  as  follows,  viz:"  (Here 
insert  the  decree  or  order.) 

Rule  72.  Correction  of  clerical  mistakes  in  arders  and 
decrees.  Clerical  mistakes  in  decrees  or  decretal  orders,  or 
errors  arising  from  any  accidental  slip  or  omission,  may,  at 
any  time  before  the  close  of  the  term  at  which  final  decree 
is  rendered,  be  corrected  by  order  of  the  court  or  a  judge 
thereof,  upon  petition,  without  the  form  or  expense  of  a 
rehearing. 

Rule  73.  Preliminary  injunctions  and  temporary  restrain- 
ing orders.  No  preliminary  injunction  shall  be  granted  with- 
out notice  to  the  opposite  party.  Nor  shall  any  temporary 
restraining  order  be  granted  without  notice  to  the  opposite 
party,  unless  it  shall  clearly  appear  from  specific  facts,  shown 
by  affidavit  or  by  the  verified  bill,  that  immediate  and  irrepar- 
able loss  or  damage  will  result  to  the  applicant  before  the  matter 
can  be  heard  on  notice.  In  case  a  temporary  restraining  order 
shall  be  granted  without  notice,  in  the  contingency  specified, 
the  matter  shall  be  made  returnable  at  the  earliest  possible 
time,  and  in  no  event  later  than  ten  days  from  the  date  of  the 
order,  and  shall  take  precedence  of  all  matters,  except  older 
matters  of  the  same  character.    When  the  matter  comes  up  for 


230  EQUITY   PLEADING    AND   PRACTICE 

hearing  the  party  who  obtained  the  temporary  restraining 
order  shall  proceed  with  his  application  for  a  preliminary 
injunction,  and  if  he  does  not  do  so  the  court  shall  dissolve  his 
temporary  restraining  order.  Upon  two  days'  notice  to  the 
uarty  obtaining  such  temporary  restraining  order,  the  opposite 
party  may  apppear  and  move  the  dissolution  or  modification 
of  the  order,  and  in  that  event  the  court  or  judge  shall  pro- 
ceed to  hear  and  determine  the  motion  as  expeditiously  as  the 
ends  of  justice  may  require.  Every  temporary  restraining 
order  shall  be  forthwith  filed  in  the  clerk's  office. 

Rule  74.  Injunction  pending  appeal.  "When  an  appeal  from 
a  final  decree,  in  an  equity  suit,  granting  or  dissolving  an 
injunction,  is  allowed  by  a  justice  or  a  judge  who  took  part 
in  the  decision  of  the  cause,  he  may,  in  his  discretion,  at  the 
time  of  such  allowance,  make  an  order  suspending,  modifying 
or  restoring  the  injunction  during  the  pendency  of  the  appeal, 
upon  such  terms,  as  to  bond  or  otherwise,  as  he  may  con- 
sider proper  for  the  security  of  the  rights  of  the  opposite 
party. 

Rule  75.     Record  on  appeal — Reduction  and  preparation. 

In  case  of  appeal: 

(a)  It  shall  be  the  duty  of  the  appellant  or  his  solicitor  to 
file  with  the  clerk  of  the  court  from  which  the  appeal  is 
prosecuted,  together  with  proof  or  acknowledgment  of  serv- 
ice of  a  copy  on  the  appellee  or  his  solicitor,  a  praecipe  which 
shall  indicate  the  portions  of  the  record  to  be  incorporated 
into  the  transcript  on  such  appeal.  Should  the  appellee  or  his 
solicitor  desire  additional  portions  of  the  record  incorporated 
into  the  transcript,  he  shall  file  with  the  clerk  of  the  court 
his  prcecipe  also  within  ten  days  thereafter,  unless  the  time 
shall  be  enlarged  by  the  court  or  a  judge  thereof,  indicating 
such  additional  portions  of  the  record  desired  by  him. 

(6)  The  evidence  to  be  included  in  the  record  shall  not  be 
set  forth  in  full,  but  shall  be  stated  in  simple  and  condensed 
form,  all  parts  not  essential  to  the  decision  of  the  questions 
presented  by  the  appeal  being  omitted  and  the  testimony  of 
witnesses  being  stated  only  in  narrative  form,  save  that  if 
either  party  desires  it,  and  the  court  or  judge  so  directs,  any 
part  of  the  testimony  shall  be  reproduced  in  the  exact  words 


FEDERAL  EQUITY  RULES  231 

of  the  witness.  The  duty  of  so  condensing  and  stating  the 
evidence  shall  rest  primarily  on  the  appellant,  who  shall  pre- 
pare his  statement  thereof  and  lodge  the  same  in  the  clerk's 
office  for  the  examination  of  the  other  parties  at  or  before  the 
time  of  filing  his  prcscipe  under  paragraph  a  of  this  rule. 
fie  shall  also  notify  the  other  parties  or  their  solicitors  of  such 
lodgment  and  shall  name  a  time  and  place  when  he  will  ask 
the  court  or  judge  to  approve  the  statement,  the  time  so  named 
to  be  at  least  ten  days  after  such  notice.  At  the  expiration 
of  the  time  named  or  such  further  time  as  the  court  or  judge 
may  allow,  the  statement,  together  with  any  objections  made 
or  amendments  proposed  by  any  party,  shall  be  presented  to 
the  court  or  the  judge,  and  if  the  statement  be  true,  complete 
and  properly  prepared,  it  shall  be  approved  by  the  court  or 
judge,  and  if  it  be  not  true,  complete  or  properly  prepared,  it 
shall  be  made  so  under  the  directions  of  the  court  or  judge 
and  shall  then  be  approved.  When  approved,  it  shall  be  filed 
in  the  clerk's  office  and  become  a  part  of  the  record  for  the 
purposes  of  the  appeal. 

(c)  If  any  difference  arise  between  the  parties  concerning 
directions  as  to  the  general  contents  of  the  record  to  be  pre- 
pared on  the  appeal,  such  difference  shall  be  submitted  to  the 
court  or  judge  in  conformity  with  the  provisions  of  paragraph 
6  of  this  rule  and  shall  be  covered  by  the  directions  which  the 
court  or  judge  may  give  on  the  subject. 

Rule  76.  Record  on  appeal — Reduction  and  preparation — 
Costs — Correction  of  omissions.  In  preparing  the  transcript 
on  an  appeal,  especial  care  shall  be  taken  to  avoid  the  inclu- 
sion of  more  than  one  copy  of  the  same  paper  and.  to  exclude 
the  formal  and  immaterial  parts  of  all  exhibits,  documents 
and  other  papers  included  therein ;  and  for  any  infraction  of 
this  or  any  kindred  rule  the  appellate  court  may  withold  or 
impose  costs  as  the  circumstances  of  the  case  and  the  dis- 
couragement of  like  infractions  in  the  future  may  require. 
Costs  for  such  an  infraction  may  be  imposed  upon  offending 
solicitors  as  well  as  parties. 

If,  in  the  transcript,  anything  material  to  either  party  be 
omitted  by  accident  or  error,  the  appellate  coui't,  on  a  proper 


232  EQUITY  PLEADING   AND   PRACTICE 

suggestion  or  its  own  motion,  may  direct  that  the  omission  be 
corrected  by  a  supplemental  transcript. 

Rule  77.  Record  on  appeal — Agreed  statement.  AVhen  the 
questions  presented  by  an  appeal  can  be  determined  by  the 
appellate  court  without  an  examination  of  all  the  pleadings 
and  evidence,  the  parties,  with  the  approval  of  the  district 
court  or  the  judge  thereof,  may  prepare  and  sign  a  statement 
of  the  case  showing  how  the  questions  arose  and  were  decided 
in  the  district  court  and  setting  forth  so  much  only  of  the 
facts  alleged  and  proved,  or  sought  to  be  proved,  as  is  essential 
to  a  decision  of  such  questions  by  the  appellate  court.  Such 
statement,  when  filed  in  the  office  of  the  clerk  of  the  district 
court,  shall  be  treated  as  superseding,  for  the  purposes  of 
the  appeal,  all  parts  of  the  record  other  than  the  decree  from 
which  the  appeal  is  taken,  and,  together  with  such  decree, 
shall  be  copied  and  certified  to  the  appellate  court  as  the 
record  on  appeal. 

Rule  78.  Affirmation  in  lieu  of  oath.  Whenever  under 
these  rules  an  oath  is  or  may  be  required  to  be  taken,  the  party 
may,  if  conscientiously  scrupulous  of  taking  an  oath,  in  lieu 
thereof  make  solemn  affirmation  to  the  truth  of  the  facts 
stated  by  him. 

Rule  79.  Additional  rules  by  district  court.  With  the  con- 
currence of  a  majority  of  the  circuit  judges  for  the  circuit, 
the  district  courts  may  make  any  other  and  further  rules  and 
regulations  for  the  practice,  proceedings  and  process,  mesne 
and  final,  in  their  respective  districts,  not  inconsistent  with 
the  rules  hereby  prescribed,  and  from  time  to  time  alter  and 
amend  the  same. 

Rule  80.  Computation  of  time — Sundays  and  holidays. 
"When  the  time  prescribed  by  these  rules  for  doing  any  act 
expires  on  a  Sunday  or  legal  holiday,  such  time  shall  extend 
to  and  include  the  next  succeeding  day  that  is  not  a  Sunday 
or  legal  holiday. 

Rule  81.  These  rules  effective  February  1,  1913— Old  rules 
abrogated.  These  rules  shall  be  in  force  on  and  after  Feb- 
ruary 1,  1913,  and  shall  govern  all  proceedings  in  cases  then 


FEDERAL  EQUITY  RULES  233 

pending  or  thereafter  brought,  save  that  where  in  any  then 
pending  cause  an  order  has  been  made  or  act  done  which 
cannot  be  changed  without  doing  substantial  injustice,  the 
court  may  give  effect  to  such  order  or  act  to  the  extent 
necessary  to  avoid  any  such  injustice. 

All  rules  heretofore  prescribed  by  the  Supreme  Court,  regu- 
lating the  practice  in  suits  in  equity,  shall  be  abrogated  when 
these  rules  take  effect. 


TABLE  OF  CASES  CITED 


[references  are  to  pages] 

Acme  V.  McLure 55 

Adams  v.  Porter 81 

Adams  v.  Valentine 55 

Alexander  v.  Tolleston  Club 130 

Allen  V.   0  'Donald 45 

Allen  V.   Randolph , 72 

Alston  V.  Jones IG 

Bailey  v.  People 9 

Baker  v.  Adm.  of  Backus 131 

Bank  v.  Levy 37-45 

Banks  v.  Manchester 82,  83 

Barton  v.  Barbour , 134 

Baumgartner  v.   Brandt 68 

Beale  v.  Beale 118 

Bean  v.   Clark 75 

Beeeher  v.  Bininger 132 

Benneson  v.  Savage 46 

Berrian  v.  Sanf ord 105,  121 

Bird  v.   Bird 49 

Blease  v.  Garlington 98,  121 

Bolter  V.  Kozolwski 120 

Booth  V.    Clark 133 

Borders  v.   Murphy. 65 

Botsf ord  V.  Beers 38 

Bowen  v.  Idley 89 

Bowie  V.  Minter 52 

Bradley  v.  McLaughlin 123 

Bromley  Carpet  Co.  v.  Field 68 

Brown  v.  City  of  Aurora 44 

Buf ord  V.  Rucker 21 

Bunnel   v.    Stoddard 104 

Bush  V.  Mattox 132 

235 


236  table  of  cases  cited 

[references  are  to  pages] 

Caller  v.  Shields 54 

Chapman  v.  Barney 22 

Chatterton   v.    Chatterton 26 

Cline  V.   Cline 68 

Coel  V.  Glos 121 

Coffin  V.   Cooper 50 

Coleman  v.  Lynde 83 

Coman   v.    Lovett 91 

Connorton  v.  Millar 88 

Contee  v.  Dawson 83 

Cosequa  v.  Fanning 102 

Cox  V.  Pierce 100 

Craig  V.  People 89 

Crane  v.  Shaef er 45-46 

Crocket  v.  Lee 28,  44 

Crombie  v.  Order  of  Soloo 132 

Crozier  v.  Acre 108 

Dalzell  V.  Dueber  Mfg.  Co 70 

Davis  V.  Collier 81 

Davis  V.   Gray 131 

Day  V.  Cole 65 

DeGroot  v.  Jay 134 

Devereaux  v.  Fleming 133 

Dickinson   v.   Torrey 105,  121 

Dillon  V.  Barnard 66 

Dodge  V.  C-ole 3 

Dowden  v.  Wilson 91 

Driver  v.  Fortner 40 

East  India  Co.  v.  Hinchman 66 

Eisenmeyer  v.  Sauter 99 

Ellsworth  V.  Curtis 77 

Ellwood  V.  Walter 105 

Emerson  v.  Atwater 125 

Farley  v.  Kittson 76 

Fayerweather  v.   Ritch 105 


table  of  cases  cited  237 

[references  are  to  pages] 

First  Nat.  Bank  v.  Baker 102 

Fitchburg  Steam  Eng.  Co.  v.  Potter 123 

Fitzpatrick  v.  Beatty 81 

Freeny  v.  Freeny 104 

Gage  V.  Parker 49 

Gillham  v.  Madison  R.  R.  Co 3 

Glos  V.  Hoban 105-125 

Gordon  v.  Reynolds 89,  105 

Gorman  v.  Mullins 101 

Gouwens  v.  Gouwens 56 

Green  v.   Bishop 125 

Haines  v.  Carpenter 132 

Hale  V.  Hale 18 

Hamilton  v.  Downer 48 

Hamilton  v.  S.  N.  Gold  Min.  Co 104 

Harding  v.  Durand 88 

Harding  v.  Handy 125 

Harms  v.  Jacobs 91 

Haupt  V.   Henninger 99 

Hayes  v.  Hammond 99,  125 

Higgius  V.  Curtiss 78 

Hookins  v.   Medley 38-39 

Hughes  V.  Carne 52 

Hughes  V.  Hatehett 132 

Hurd  V.  Goodrich 125 

Hutchinson  v.  American  Palace  Car  Co 131 

Jackson  v.  Ashton 35 

Jackson  v.  Lahee 133 

Jackson  v.  Sackett 84,  102 

Keeley  Co.  v.  Hargreaves 123 

Kimberly  v.  Arms 118 

Koch  V.  Arnold 45 

Koch  V.  Roth 89 


238  TABLE  OF  CASES  CITED 

[references   ARE   TO   PAGES] 

Lathrop  v.  Brarahall 104,  105 

Law  V.  Ware 63,  82 

Leeds  v.  Insurance  Co 83 

Legget  V.   Postley 81 

Loaiza  v.  Superior  C.  T 131 

Long  V.  Fox 68 

Lull  V.  Clark 119 

Lyman  v.  Central  Vermont  R.  Co 135 

]\Iallow  V.  Hinde 17 

IMarco  v.  Hublin 17 

Marple  v.  Seott 95 

]\Iassenberg  v.   Dennison 98 

Mason  v.   Blair 100 

]\Iartin  v.  McBryde 45 

McClay  v.  Norris 99 

McCloskey  v.  Barr 70,  72 

McConoughy  v.  Jackson 46 

McDougald  v.  Dougherty 57 

McFall  V.  Kirkpatrick 18 

McGeorge  v.  Big  Stone  Gap  Imp.  Co 134 

McGown  V.  Young 94 

]\IcMalion  v.  Rowley 121 

Mc]\rannomy  v.  C.  D.  &  V.  R.  R.  Co 125 

]\Ic:\rannomy  v.  "Walker 123,  125 

Mechanic's  Nat.  Bank  v.  Landauer 134 

Metcalf  V.  CsLdf 49 

Metropolis  National  Bank  v.  Sprague 56 

Millard  v.   Millard 81,  103,  104 

Miller  v.   Perks 76 

]\Iills  V.  Larrenee 56 

Mohler  v.  Wiltberger 108 

]\Ionroe  Cattle  Co.  v.  Becker 23 

Mosier  v.  Norton 81 

Murphy  v.  Murphy 66 

Neal  V.  Foster 58 


table  of  cases  cited  239 

[references  are  to  pages] 

Ohman  v.  Ohman 101 

Onondaga  Trust  Co.  v.  Spartensburg  Water  Wks.  Co 132 

O'Toole    Estate 120 

Owen  V.   Kanstead 96 

Parker  v.  Moore 132 

Payne  v.   Hook 18 

Paxton  V,  Stackhouse 55 

Phillips  V.  Gannon 94 

Piot  V.  Davis 86 

Piper  V.  Hoard 9 

Potter  V.   Potter 95 

Prendergast  v,   McNally 125 

Purf ry  v.  Purf ry 47 

Eianger  v.  Champion  Cotton  Press  Co 134 

Remsen  v.  Remsen 99,  122 

Rhode  Island  v.  Mass '. .   75 

Richards  v.  Lake  Shore  R.  R.  Co 108 

Roach  V.  Glos 83 

Rollins  V.  Henry 132 

Ryder  v.  Bateman 132 

Schnadt  v.  Davis 99,  122 

Shadewald  v.  White 133 

Shields  v.  Barrow 57 

Shields  v.  Bush 55 

Singer  v.  Steele 125 

Smith  V.   Trimble 102 

South  Chicago  Brew,  Co.  v.  Taylor 91 

Spencer  v.  Groodlett 35 

Stafford  V.   Brown 83 

Stevenson  v.  Austin 20 

Stiratt  V.  Excelsior  Mfg.  Co 50 

Stokes  V.  Farnsworth 62 

Stone  V.  Ferry 44 

Story  V.   Livingston 125 


240  table  op  cases  cited 

[references  are  to  pages]  ' 

Sturgeon  v.  Biirrall 20 

Sullivan  v.  Railroad 47 

Supervisors  v.  ]\Iississippi  R.  R.  Co 36 

Swift  V.  Castle 103,  121 

Thomson  v.  Wooter 113 

Tobin  V.  Walkinshaw 17 

Travers  v.  Ross 62 

Troy  Iron  v.  Corning 100 

Trust  Co.  V.  R.  R.  Co 66 

Turner  v.  Bank 46 

Union  Banli  of  La.  v.  Staiford 20 

U.  M.  Life  Ins.  Co.  v.  Slee 122 

Variek  v.   Smith 48 

Walker  v.   Powers 49 

Walsh  V.  Smyth 90 

Wanneker  v.  Hitchcock 132 

Waska  v.  Klaisner 124 

Weaver  v.  Alter 57 

AVestervelt  v.  Library  Bureau 76 

Wilcox  V.  Allen 55 

Wilder  v.  Keeler 52 

Wilkin  V.  Wilkin 40 

Williamson  v.  Monroe 13 

AVilson  v.  Eggleston 44 

Wilson  v.  King 90 

Wliiting  v.  Bank 54 

Wliitney  v.  Mayo 21 

Woods  V.  Morrell 50 

Woodland  Bank  v.  Heron 133 

Wooster  v.  Gumbriner 119 

Worthington  v.  Lee 77 

Wright  V,   Frank 57 

Yarnell  v.  Brown 112 


INDEX 


[references  are  to  pages] 

Account,  forms  of  before  master,  Rule  63 227 

form  of  order  of  reference 172 

matters  of,  reference  to  master,  Rule  59 226 

to  be  identified  but  not  stated  in  master's  report,  Rule  61  226 
Action,  at  law  erroneously  begun  in  equity,  transfer,  Rule  22  214 

joinder  of,  causes  of.  Rule  26 215 

to  be  prosecuted  in  name  of  real  party  in  interest,  Rule 

37 218 

Abatement,  defenses  formerly  presentable  by,  to  be  made  in 

answer.  Rule  29 216 

Absence  of  persons  who  would  be  proper  parties,  Rule  39 . .  219 

Address  of  bill    34 

Adequate  remedy  at  law 13 

Additional  rules  by  district  court.  Rule  79 232 

Administrator  as  party.  Rule  37 218 

Admissibility  of  evidence  to  be  passed  on  by  court.  Rule  46  220 

Admission  of  execution  of  documents.  Rule  58 224 

Advancement  of  cause.  Rule  6 210 

Affidavit  in  support  of  motion  to  set  aside  order  pro  confesso, 

form  of 148 

of  expert  witnesses  in  patent  and  trade  mark  cases.  Rule 

48 221 

of  non-compliance  with  decree  for  attachment  to  issue. 

Rule  8 211 

of  service  of  process  to  be  made  by  person  appointed 

therefore.   Rule   15 213 

on  application  for  preliminary  injunction.  Rule  73 ... .  229 
previously  used  in  court,  may  be  used  before  master, 

Rule  64 227 

required  on  application  for  continuance,  Rule  57 224 

to  be  identified  but  not  stated  in  master's  report,  Rule 

61    226 

241 


242  INDEX  I 

[references  are  to  pages] 

Affirmation  in  lieu  of  oath,  Rule  78 232 

Affirmative  relief  by  answer 56 

Agreed  statement,  record  on  appeal,  Rule  77 232 

Allegations  are  the  foundations  of  the  proofs 46 

of  bill  deemed  confessed  if  not  denied  or  explained, 

Rule  30 216 

Allegation  of  defendant's  claims 47 

Alternative  defenses  may  be  stated  in  answer,  Rule  30. . . .   216 

grounds   of   suit 47 

Amended  bill,  answer  to,  Rule  32 217 

new  answer  to 90 

Amend,  petition  for  leave  to,  form  of 169 

Amendment,  by  supplemental  bill 91 

clerical  mistakes  in  orders  and  decrees,  Rule  72 229 

generally.  Rule  19 213 

if  material  vacates  all  defaults 91 

leave  must  be  obtained  for 90 

method  of 90 

of  answer 90 

of  bill  as  of  course,  Rule  28 216 

of  bill,  calls  for  new  answer.  Rule  32 217 

of  bill  in  lieu  of  special  replication 88 

of  bill,  form  of 169 

of  bill  when  as  of  course.  Rule  28 216 

of  pleadings  on  substitution  of  parties,  Rule  45 220 

on  suggestion  of  defect  of  parties,  Rule  43 220 

nature  of 88 

not  after  defendant's  pleading  filed,  except,  etc..  Rule 

28 216 

permitted  of  any  process,  pleading,  record,  etc.,  Rule  19  213 

should  not  make  different  case 88 

to  avoid  variance  in  the  proofs 91 

to  conform  to  proofs 89 

when  made 89 

Anomalous  plea 71 

plea,  form  of 156 

Answer,  affirmative,  relief  upon 82 

amending 90 

amendment  of  by  leave  on  reasonable  notice,  Rule  30 . . .  216 


,  iN]>Ex  243 

[references  are  to  pages] 
Answer — Continued 

averments  of  and  proofs  must  correspond 81 

cause  at  issue  on  filing  of,  unless,  etc.,  Rule  31 217 

compelling  full  answer 80 

contents,  counter-claim,  Rule  30 216 

defenses  formerly  presentable  by  plea  in  bar  or  abate- 
ment to  be  made  in  answer,  Rule  29 216 

defenses  to  be  presented  in,  Rule  29 216 

effect  of  not  answering  certain  allegation  of  the  bill ....     78 

enlarging  time  for  filing.  Rule  16 213 

exceptions  for  insufficiency  of,  abolished,  Rule  32 217 

exceptions  to 83 

exceptions  to  for  scandal  and  impertinence,  shall  not 

obtain,  Rule  21 214 

form  of 158 

if  demurrer  in  answer 82 

if  insufficient  may  be  amended  or  matter  stricken  out. 

Rule  33 217 

if  not  filed,  pro  confesso  decree  entered,  Rule  29 216 

in  support  of  plea 72,  73 

in  support  of  plea,  form  of 156 

may  be  stricken  out  for  failure  to  answer  interrogatories 

or  produce  documents.  Rule  58 224 

may  state  defenses  in  alternative,  Rule  30 216 

must  state  counter-claim,  Rule  30 216 

must  answer  every  allegation  of  the  bill 79 

must  avoid  general  denial  of  averments  of  bill,  Rule  30  216 

new  answers  to  amended  bill 90 

new  answer  to  amended  bill  to  avoid  default,  Rule  32 .  . .   217 

not  required  to  certain  allegations 81 

plea  and  demurrer  in  federal  courts 161 

should  avoid  pleading  conclusions  of  law 81 

subpoena,  proper  process  to  compel,  Rule  7 210 

sufficiency  of.   Rule   33 217 

time  for,  Rule  12 212 

testing  the  legal  sufficiency  of 82 

to  amended  bill,  Rule  31 217 

to  be  filed  if  motion  to  dismiss  denied,  Rule  29 216 

to  be  filed  within  time  named  in  subpoena,  Rule  16 213 


244  INDEX 

[references  are  to  pages] 
Answer — Continued 

to  be  filed  20  days  after  service,  Rule  12 212 

to  be  identified  but  not  stated  in  master's  report,  Rule  61  226 

to  omit  statement  of  evidence,  Rule  30 216 

to  specifically  admit  or  deny,  or  explain  facts  upon  which 

plaintiff  relies,  Rule  30 216 

two-fold  nature  of 78 


waiving  same. 


84 


what  to  contain.  Rule  30 216 

when  defect  of  parties  suggested,  proceedings  on,  Rule 

43    220 

when  not  under  oath  is  mere  pleading 79 

when  to  be  filed  on  motion  to  set  aside  decree  pro  con- 

fesso,  Rule   17 213 

when  required  under  oath  is  evidence 79 

Appeal,  abstract  of  evidence  to  be  filed  in  clerks  office.  Rule 

75    230 

appellate  court  not  to  reverse  except  for  material  preju- 
dice, Rule  46 220 

form  of  citation  upon 207 

form  of  petition  for 207 

injunction  pending,  Rule  74 230 

omissions  in  transcript  on.  Rule  76 231 

record,  agreed  statement,  Rule  77 232 

record,  costs,  correction  of  omissions.  Rule  76 231 

record  on,  difference  as  to.  Rule  75 230 

record,  reduction  and  preparation,  Rule  75 230 

Appearance,    effect   of 26 

filed  with  clerk  to  be  noted  on  equity  docket,  Rule  3 . . .  ,   209 

form  of 146,  147 

special  or  limited 25 

subpoena,  proper  process  to  compel.  Rule  3 209 

voluntary 26 

Appellant,  to  condense  evidence,  etc..  Rule  75 230 

to  file  praecipe  indicating  portion  of  record  on  appeal, 

Rule  75 230 

to  notify  opposing  party  or  solicitors.  Rule  75 230 

Appellate  court  may  direct  further  steps  as  justice  may 

require.  Rule  46 220 


INDEX  245 

L 

[references  are  to  pages] 
Appellate  court — Continued 

not  to  reverse  decree  for  rejection  of  evidence  unless 

material  harm,  Rule  46 220 

Appellee,  to  file  praecipe  indicating  additional  portions  of 

records  on  appeal.  Rule  75 230 

Assistance,  form  of  writ 204 

when  writ  of  to  issue.  Rule  7 210 

writ  of  on  refusal  to  obey  decree  for  delivery  of  posses- 
sion, Rule  9 211 

Attachment  for  non  compliance  with  decree.  Rule  8 211 

may  issue  for  failure  to  answer  interrogatories  or  pro- 
duce documents.  Rule  58 224 

not  to  be  discharged  unless  upon  full  compliance  with 

decree,  etc.,  Rule  8 211 

provisions  as  to,  Rule  7 210 

writ  of 115 

Attendance   of   witness   before   examiner,   master   commis- 
sioner. Rule  52 222 

Bill,  address  part 34 

by  stockholder  when  to  be  verified.  Rule  27 215 

charging  part 36 

confederating  part 36 

different  parts  of 137 

discovery  part 38 

dismissal  of , . .  107 

forms    137 

general  interrogatory  part   38 

jurisdiction  part 38 

interrogatory  part 38 

introductory  part 35 

may  be  dismissed  for  failure  to  answer  interrogatories 

or  produce  documents.  Rule  58 224 

may  be  taken  pro  confesso  if  answer  not  filed,  Rule  12 .  .  212 
must  be  verified  if  special  relief  pending  the  suit  is 

desired.  Rule  25 214 

must  state  ultimate  facts  not  evidential  merely,  Rule  25  214 

nature  of 31 

of  complaint 31 


246  INDEX 

[references  are  to  pages] 

Bill — Continued 

of  complaint,  contents,  Rule  25 214 

of  complaint,  short  form 141 

of  particulars  in  federal  courts 92 

of  review 34,  52,  53 

of  review,  form  of 205,  206 

of  revivor   34 

of  revivor,  form  of 204 

of  revivor  what  necessary  in.  Rule  35 218 

prayer  for  process  or  summons 40 

prayer  for  relief 40 

signing,  Rule  24 214 

special  interrogatory  part 38 

stating  part 35 

stating  part  should  omit  mere  statement  of  evidence, 

Rule  25 214 

stockholders,  what  to  contain.  Rule  27 215 

supplemental,  what  necessary  in,  Rule  35 218 

to  carry  decree  into  effect     34 

to  impeach  decree 34 

to  impeach  a  decree,  or  to  carry  a  decree  into  effect.  .  .     58 

to  suspend  decree 34 

usual  parts  of 34 

verification  of  on  application  for  preliminary  injunc- 
tion. Rule  73 229 

Bills  in  equity 27 

not  original 32-51 

not  original,  table  of 59 

original 31 

on  suspending  injunction  on  appeal,  Rule  74 230 

Books,  papers,  production  required  by  master,  Rule  62 226 

Building  and  loan  association,  plan  of  master's  foreclosure 

report  180 

Brief  before  master,  form  of 182 

before  master 123,  124 

Calendar,  when  case  goes  on  for  trial,  Rule  62 226 

Case  law 10,  11 


INDEX  247 

[refeeences  are  to  pages] 

Certificate  of  evidence,  form  of 206 

of  evidence  from  master 174-175 

of  sale  by  master 192 

Certiorari,  bill  of 32 

Chambers,  judge  at,  Rule  1 209 

Chancellor  12 

Charging  part  of  bill 36-48 

may  be  omitted 42 

Clerk  of  district  court,  duties  of,  Rule  2 209 

Clerks  office,  when  open,  Rule  2 209 

Commission  on  interrogatories,  praecipe  for 145 

Common  and  equity  law 1 

Common  law,  questions  of  arising  in  an  equity  suit.  Rule  23  214 

Conclusions  of  law 43 

of  law  in  master's  report  need  not  be  objected  to 125 

of  law  should  not  be  pleaded 45 

Confederacy  clause,  may  be  omitted 42 

clause  of  bill 36 

Confirmation  of  master 's   report    125 

of  master's  report,  form  of 185 

of  master's  sale,  form  of  order 191 

Constructive  service  in  federal  courts 24 

Contempt,  for  not  obeying  decree 115 

for  not  obeying  order,  Rule  8 211 

for  refusing  to  appear  as  witness.  Rule  52 222 

Continuance,  provisions  as  to.  Rule  57 224 

Continuances,  how  cause  may  be  dismissed  for  neglect,  Rule 

57 224 

Costs  may  be  imposed  on  solicitors  for  redundant  matter  in 

transcript  on  appeal.  Rule  76 231 

must  be  paid  before  discharge  of  attachment,  Rule  8.  . .   211 
of  plaintiff  must  be  paid  by  defendant  before  pro  con- 

fesso  decree  vacated.  Rule  17 213 

on  continuances,  Rule  57 224 

on  exceptions  to  master's  report.  Rule  67 228 

on  reference  to  master.  Rule  59 226 

stenographers  fees  taxed  as,  Rule  50 222 

to  be  paid  to  nominal  parties,  Rule  40 219 


248  INDEX 

[references  are  to  pages] 
Costs — Continued 

to  be  taxed  for  introducing  incompetent  testimony,  Rule 

51 222 

upon  bill  of  particulars  giving  further  and  better  state- 
ment, Rule  20 214 

where  genuineness  of  document  not  confessed,  Rule  58  224 

Counter  claim  to  be  stated  in  answer,  Rule  69 228 

Cross-bill 34,  54 

counter-claim  to  be  stated  in  answer  and  not  by,  Rule  30  216 

defendants  pleading  to  same 58 

defendants  to  57 

form  of • 57 

must   be   germane 55 

Cross-examination  before  examiners  and  the  liie,  Rule  54.  .  223 
of  expert  witnesses  in  patent   and  trade-mark  cases. 

Rule  48 221 

of  witnesses  where  no  notice  of  deposition  given,  Rule 

54   223 

De  bene  esse,  bill  to  examine  witnesses 32 

Decisions,   based  upon  reason 9 

Decree Ill 

enforcement  of 115 

enforcement  of.  Rule  8 211 

final   and   interlocutory 112 

for  deficiency  in  foreclosure,  Rule  10 212 

form  of,  Rule  46 220 

in  foreclosure,  form  of 186 

is  notice  of  acts  to  be  done  by  defendant.  Rule  8 211 

not   to   be   reversed  unless  material   prejudice   would 

result.  Rule  46 220 

pro  confesso 113,  114 

pro  confesso,  Rule  16  213 

pro  confesso  to  be  followed  by  final  decree.  Rule  17. . .  213 

pro  confesso,  when  set  aside.  Rule  17 213 

what  it  should  contain Ill 

w^hen  should  be  drafted 44 

Decretal  orders Ill 


INDEX  249 

[references  are  to  pages] 
Default  upon  default  entered  cause  to  proceed  ex  parte, 

Rule  16 213 

decree    113,  114 

decree  setting  aside,  Rule  17 213 

decree  when  absolute.  Rule  17 213 

order,  form  of 147 

order  where  appearance,  form  of 147 

Defense  arising  after  bill  filed 56 

Defenses,  how  to  plead,  Rule  29 216 

to   actions,    classification 60 

to  actions,  table  of 61 

Defensive   pleadings 60 

pleadings,  review  table  of 85 

Deficiency  decree,  form  of  in  foreclosure 191 

Demurrer,  abolished,  insufficiency  of  merits  may  be  shown 

by  motion  to  dismiss,  Rule  29 216 

advisable  to  file  general  and  special  demurrer 65 

and   plea   compared 70 

defined   62 

distinction  between  general  and  special  demurrer 64 

does  not  apply  to  any  pleading  except  the  bill 62 

effect  of  overruling  or  of  sustaining 68 

forms  of 64 

form  of  for  multifariousness 151 

form  of  to  part  of  bill 151 

form  of  general  and  special  demurrer 150 

form  of  special 151 

for  want  of  parties 151 

function  of 63 

general  64 

grounds  of QQ 

how  waived 68 

in  the  answer 82 

nature  of 60 

oral,  ore  tenus 65 

plea  and  answer  in  one 152 

raises  questions  of  law 62 

special    64 

speaking  demurrer 68 


250  ,  INDEX 

[references  are  to  pages] 

Demurrer — Continued 

sufficiency  of,  Rule  33 217 

table  of  different  grounds  of 67 

what  is  conceded  upon  argument  of 66 

Depositions  already  in  cause  may  be  used  by  master,  Rule  64  227 

deemed  published  when  filed,  Rule  55 223 

examinations  in  master 's  office  may  be  by,  Rule  62 ...  .  226 

may  be  taken  when,  Rule  47 221 

time  to  take.  Rule  47 221 

time  within  which  must  be  taken,  Rule  47 241 

to  be  taken  only  in  exceptional  instances,  Rule  47 221 

Disclaimer 77 

form  of 162. 

Discovery  by  means  of  additional  interrogatories.  Rule  58 . .  224 

bill  of 32 

Dismissal  of  bill 107,  108 

Docket,  order  book  equity  journal,  Rule  3 209 

Documents  party  may  be  called  to  admit  genuineness  of. 

Rule  58 228 

production  and  inspection  of.  Rule  58 224 

production  of  required  by  master,  Rule  62 226 

Duties  of  a  lawyer 43 

Equity  and  common  law,  its  source  and  basis 4,  5 

and  common  law  procedure  compared 14 

court,  origin  of 1 

old  rules  abrogated,  Rule  81 232 

Errors,  harmless,  to  be  disregarded  by  court,  Rule  19 213 

Evidence,  abstracts  of  made  for  the  court 109 

admission  and  denials  by  pleadings,  by  defaults,   by 

stipulations   93 

admissions  by  default 95 

admissions  from  averments  of  hill , 94 

admissions  upon  information  and  belief 94 

affidavits 100" 

before  master 120 

briefing  same 109 

court  should  pass  on  admissibility  of,  Rule  46 220 


INDEX  251 

[references  are  to  pages] 
Evidence — Continued 

cost  of  transcript  of  to  be  advanced  by  party  calling  the 

witness  or  ordering  transcript,  Rule  50 222 

deemed  t-o  be  preserved  of  record  by  recitals  in  decree . .   101 

even  rejected  evidence  must  show  in  the  record 97 

examiner  cannot  decide  on  competency  of,  Rule  51 ... ,   222 

exhibits  omitted  before  master 102 

express  admissions  in  pleadings  94 

form  of  master 's  report  of,  or  certificate  of 174 

forms  in  which  evidence  preserved  in  the  record 98 

heard  by  one  master  cannot  be  considered  by  another. .   121 

how  stated  in  record  upon  appeal,  Rule  75 230 

if  excluded  court  should  explain  its  nature,  Rule  46 . . .  220 

in  form  of  deposition 99 

judges  and  masters  should  express  their  rulings 104 

judge's  certificate  form  of 206 

judge's  certificate  of 98 

master  may  direct  mode  of  proving  matters,  Rule  62 .  .   226 
master  may  examine  claimants  and  upon  request  evi- 
dence must  be  taken  in  writing.  Rule  65 227 

master 's  report  of 98 

new  practice 96 

no  admissions  or  defaults  against  infants 94 

notice  of  taking  testimony  before  examiner,  Rule  53 . .  .   223 

notice  of  taking  before  master 122 

objections  and  rulings  thereon   102,  103,  104,  105 

objections  must  be  insisted  upon  to  save  same  for  re- 
view     103 

objections  to  before  examiner  to  be  noted  by  him,  Rule 

51 222 

objections  to  before  master 121 

old  practice 95 

petition  to  present  new  evidence  after  taking  evidence 

is  closed 110 

preserving  in  record 97 

preserving  of  record  in  default  divorce  cases 102 

production  of  doeuments  containing,  Rule  58 224 

refusal  of  witness  to  answer  questions  before  examiners, 
etc.,  Rule  52 222 


252  INDEX 

[references  are  to  pages] 
Evidence — Contin  iied 

rulings  thereon  in  federal  court 103 

taking   testimony 95 

though  rejected,  must  appear  in  record  for  review 105 

verifying  depositions 100 

when  deemed  necessary  stenographer  may  be  appointed 

to  take  and  transcribe  testimony,  Rule  50 222 

when  exceptions  unnecessary  to  rulings  upon 103 

when  objections  to  rulings  on  evidence  are  brought  be- 
fore court  for  review 105 

when  need  not  be  preserved  of  record 101 

Evidential  facts  should  not  be  pleaded  except  where  ne- 
cessary        44 

facts  showing  fraud  or  usury  should  be  pleaded 45,  48 

Exceptions  for  insufficiency  of  answer  abolished,  Rule  33 . . .  217 

for  scandal  and  impertinence 163 

to  answer  for  insufficiency 163 

to  master 's  report   125-185 

to  masters  report.  Rule  66 227 

to  masters  ruling  upon  evidence 121 

Exhibits  omitted  before  master  when  may  be  offered  in  court  102 

should  be  annexed  to  bill  if  made  a  part  thereof 45 

Examiners  116 

Examiner  to  note  objections  to  evidence,  Rule  51 222 

Examine  witnesses  de  bene  esse,  bill  to 32 

Execution  upon  decree  solely  for  payment  of  money.  Rule  8  211 
Exparte  proceedings  before  master  if  parties  fail  to  appear, 

Rule  60 226 

Facts,  conclusions  of 43 

findings  of 43 

Fees,  form  of  masters  certificate  of 176 

order  directing  master's  fees  to  be  paid 177 

Final  decree 112 

Findings  in  master's  report 123 

Foreclosure  report  plan  for  in  master's  office 177 

report  for  building  and  loan  association  plan  of 180 

Forms  137 

answer  setting  up  statute  of  frauds 161 


INDEX  253 

[references  are  to  pages] 
Forms — Continued 

answer  setting  up  statute  of  limitation 161 

affidavit  to  support  motion  to  set  aside  pro  confesso 

decree  148 

appearance 146 

address  of  bill 137 

bill  of  complaint  short  in  federal  court 141 

bill  to  foreclosure 141 

bill  of  review 204 

bill  of  revivor 204 

brief   before   master 182 

certificate  of  evidence 206 

charging  part  of  bill 138 

citation  upon  appeal 207 

confederating  part  of  bill 138 

decree,  Rule  71 229 

decree  in  foreclosure 186 

disclaimer 162 

default  order  where  appearance 147 

default  order  where  service  by  publication 147 

demurrer,  special  and  general 150 

demurrer  for  want  of  parties 151 

demurrer  for  multifariousness 151 

demurrer  plea  and  answer  in  one 152 

demurrer  to  part  of  bill 151 

exceptions  to  master 's  report 185 

exceptions  for  scandal  and  impertinence 163 

exceptions  to  answer  for  insufficiency 163 

introductory  part  of  bill 137 

interrogatory  part  of  bill 138 

jurisdictional  part  of  bill 138 

master's  certificate  of  sale 192 

master's  certificate  of  redemption 193 

master 's  deed 193 

master's  report  in  partition  suit 103 

master 's  report  in  partition  sale 196 

master's  report  of  sale  and  distribution 189 

master's  report  of  distribution  in  partition  suit 199 

motion  to  dismiss  instead  of  demurrer 152 


254  INDEX 

[references  are  to  pages] 
Forms — Continued 

motion   to   strike  out   for   insufiScieney   of   answer,   in 

federal  court 164 

notice  of  draft  of  master's  report 182 

notice  of  motion 165 

notice  to  take  evidence  before  master 172 

order  allowing  plea  for  insufficiency 157 

order  appointing  guardian  ad  lilem 149 

order  confirming  master's  report    185 

order  confirming  master's  report  of  partition  sale,  and 

directing  distribution 198 

order  confirming  master's  sale  and  deficiency  decree.  .  191 

order  denying  motion  to  dismiss 152 

order  for  further  answer  after  exceptions 165 

order  for  production 168 

order  giving  leave  to  amend 170 

order  granting  preliminary  injunction 200 

order  of  consolidation 201 

order  of  default  and  pro  confcsso 147 

order  of  reference  on  exceptions 164 

order  overruling  demurrer 153 

order  sustaining  demurrer 153 

order  to  pay  money  into  court 202 

order  vacating  default 148 

objections  to  master's  report 184 

objections  and  exceptions  to  master's  rulings  upon  evi- 
dence    183 

petition  for  appeal 207 

petition  for  leave  to  amend 169 

petition  for  appointment  of  guardian  ad  litem 148 

plea 153 

plea  of  former  adjudication 155 

plea  in  federal  court 155 

plea  of  release 156 

plea  to  part  of  bill 154 

prayer  for  injunction  in  bill 140 

prayer  for  process 139 

prayer  for  relief 139 

prayer  for  subpoena  in  federal  court 139 


INDEX  255 

[references  are  to  pages] 
Forms — Continued 

prayer  for  writ  of  ne  exeat  in  bill 140 

praecipe  for  setting  cause  for  hearing 202 

praecipes  for  process,  for  commission,  for  subpoena  145,  146 

production  and  inspection  of  papers 167 

replication 165 

restraining  order 200 

special  demurrer 151 

special  interrogatories 139 

stating  part  of  bill 138 

stipulation  202 

summons 140 

writ  of  assistance 204 

writ  of  ne  exeat 202 

writ  of  preliminary  injunction 201 

writ  of  sequestration 203 

Frauds,  defense  of  statute  in  answer 161 

Fraud,  evidential  facts  showing,  should  be  pleaded 48 

General  demurrer 64 

Guardian  ad  litem,  appointment  of,  Rule  70 229 

Hearing  before  master,  nature  of 121 

in  court  for  decree , 109 

Injunction  128 

appeal  from  final  decree,  Rule  74 230 

damages  must  appear  in  application.  Rule  30 216 

no  preliminary  injunction  without  notice.  Rule  73 ... .  229 

pending  appeal  orders  as  to.  Rule  74 230 

prayer  for  in  bill 40,  41,  140 

what  bill  must  show  to  obtain 130 

Impertinence 50 

and  scandal,  exceptions  for 50 

Impertinent,   scandalous   and   redundant    matter    may    be 

stricken  out  by  the  court.  Rule  21 214 

Infants,  ansyver  form  of  for  guardian  ad  litem 161 

may  sue  by  procheiyi  ami,  Rule  70 229 


256  INDEX 

[references    AliE   TO   PAGES] 

Information 31 

allegations  on 46 

Inspection  of  documents 48 

of  papers,  petition  for 167 

Insufficiency  of  answer  in  federal  court 164 

Interlocutory  orders,  notice  of.  Rule  6 210 

Interpleader,  bill  of 31 

Interrogatories  clerk  must  send  copies  to  solicitors  of  record, 

Rule  58 224 

in  federal  courts 42,  92 

objections  to.  Rule  58 224 

Interrogatory  part  of  bill 38 

Interrogatories  to  be  answered  separately  and  fully  under 

oath  and  signed.  Rule  58 224 

when  corporate  officer  to  sign  under  oath,  Rule  58 ... .  224 

Intervention,  when  allowed,  Rule  37 218 

Introduction,  part  of  bill 35 

Judge  made  law 3 

Judicial  power,  independence  of  in  U.  S 8 

Jurisdiction  bill  in  federal  courts  must  state  ground  of, 

Rule  25 214 

clause  of  bill  may  be  omitted 42 

of  equity  courts 13 

part  of  bill  in  federal  courts 38 

Law,  findings  of 43 

Lawyer,  his  chief  duties 43 

Laches  should  not  appear  from  bill 47 

Leave  of  court  to  sue  receiver 134 

to  amend 170 

Legal  conclusions  should  not  be  pleaded  except  when  nec- 
essary    45 

Liberty  and  property  rights 7 

Limitations  statute  setting  up  in  answer,  form  of 161 

Limitation  statute,  when  suit  deemed  to  begin,  as  to 31 

Limited  appearance 147 

Lis  pendens,  when  suit  deemed  to  begin,  as  to 31 


INDEX  257 

[references  are  to  pages] 

Master    117 

appoiutment  and  compensation  of,  Rule  68 228 

attachment  for  master's  fees,  Rule  68 228 

Master 's  certificate  of  fees 176 

]\Iaster,  compensation  to  be  fixed  by  court,  Rule  68 228 

cost  of  reference,  who  bears,  Rule  59 226 

duties  of 117 

duties  and  powers  in  federal  court 118,  119 

Master's  deed  form 193 

Master,  evidence  before 120 

exceptions  to  report  of.  Rule  66 227 

Master 's  findings,  court  may  add  to  or  change 126 

Master,  form  of  accounts  before.  Rule  63 227 

form  of  order  of  reference 170 

may  examine  claimants  and  if  requested  take  down  evi- 
dence. Rule  65 227 

nature  of  hearing  before 121,  122 

no  power  to  release  exhibits 120 

Master's  notice  of  draft  of  report 182 

Master,  objections  before 121 

objections  to  report  of 124 

personal  presence  required  in  examination  of  witnesses  120 

plan  of  foreclosure  report 177 

powers  of.  Rule  62 226 

proceedings  upon  reference  to  state  account 122 

production  of  books  and  papers  before 119 

references  to 117,  118 

references  to  in  federal  court 119 

returns  report  to  clerk 's  office,  Rule  66 227 

Master's  report 122,  123 

report  exceptions  to 125 

Master,  report  cannot  be  retained  for  compensation.  Rule  68  228 

Master's  report,  confirmation  of 126 

report  form  of 173 

report  in  partition  suit 195 

report  may  identify  certain  documents  but  may  not  re- 
cite them,  Rule  61 226 

report  of  sale  and  distribution,  form 189 

report  of  partition  sale 196 


258  INDEX 

[references  are  to  pages] 
Master's  report — Contimicd 

report  soon  as  ready  to  be  returned  to  clerk's  office, 

Rule  66 227 

Master's  sale,  memorandum  of  cash  required  to  purchase. . .  96 

scope  of  authority  of 117 

special  master,  Rule  68 228 

to  give  notice  of  proceedings  before  him,  Rule  60 226 

to  return  his  report  to  clerk's  office  soon  as  ready.  Rule 

66    227 

Minors,  nothing  taken  as  confessed  against,  Rule  30 216 

Mistakes,  clerical  in  orders  and  decrees,  how  corrected,  Rule 

72 229 

Motion  in  federal  court  to  strike  out  of  answer  for  insuf- 

ficieiicy 164 

Motions,  of  course  and  not  of  course 106 

of  course,  grantable  by  clerk,  Rule  5 210 

should  be  drafted  by  solicitor 106 

Motion  to  dismiss,  same  as  demurrer,  form 152 

to  strike  out  to  test  sufficiency  of  answer,  Rule  33 217 

to  dismiss  instead  of  demurrer,  Rule  29 216 

Multifariousness 49 

Rule  26 215 

form  of  demurrer  for 151 

Ne  exeat,  prayer  for  in  bill 40,  41,  140 

form  of  writ 202 

Negative  plea 71 

Notice,  no  preliminary  injunction  without.  Rule  73 229 

of  draft  of  master's  report 182 

of  interlocutory  orders.  Rule  6 210 

of  motion,  form  of 165 

of  orders.  Rule  4 210 

of  proceedings  before  master,  Rule  60 226 

of  taking  evidence  before  master 122,  172 

to  parties  of  time,  place  and  cash  required  to  purchase  189 
to  take  evidence  before  master 172 

Objections  and  exceptions  to  master's  rulings  upon  evidence, 

form  of 183 


INDEX  259 

[references  are  to  pages] 
Objections  and  exceptions — Continued 

as  to  parties,  Rule  43 220 

to  master 's  report 124,  184 

to  master's  report,  unnecessary  to  conclusions  of  law. .   125 

and  rulings  upon  evidence 102 

to  evidence  before  master 121 

to  evidence  to  be  noted  by  examiner,  Rule  51 222 

to  evidence  should  be  insisted  upon  to  save  for  review . .  103 

Offer  to  do  equity 47 

Orders,   interlocutory Ill 

of  COUI't Ill 

allowing  plea,  form  of 157 

appointing  guardian  ad  litem 149 

confirming  master's  report,  form  of 185 

of  default  and  pro  confesso 147 

directing  master's  fees  to  be  paid 177 

denying  motion  to  dismiss 153 

for  further  answer  after  exceptions 165 

granting  preliminary  injunction,  form 200 

overruling  demurrer,  form  of 153 

for  production  of  papers,  form  of 168 

of  reference  on  exceptions,  form  of 164 

sustaining  demurrer  and  dismissing  bill 153 

to  pay  money  into  court,  form  of 202 

vacating  default 148 

Original  bills,  table  of 33 

Oyer  in  equity 48 

Parts  of  bill 137 

Particulars,  bill  of  in  federal  courts 92 

further  and  better  statement  of  claim  or  defense  may  be 

ordered,  Rule  20 214 

Parties,  Rules  37,  38,  39,  40,  41,  42,  43,  44,  45 218,  219,  220 

by  virtual  representation 20 

bill  should  state  why  necessary  parties  not  joined,  Rule 

25 214 

citizenship,  name  and  residence  of  each  party  must  be 

stated  in  bill.  Rule  25 214 

classification  of 17 


260  INDEX  ' 

[references  are  to  pages] 
Parties — Continu  e  d 

defendant 17 

defendants  to  cross  bill 57 

dispensable  and  indispensable 17 

effect  of  misnaming  as  defendants  or  plaintiffs 20 

executor  or  guardian  as,  Rule  37 218 

full  names  and  citizenship  of,  Rule  25 214 

heir  as  party  to  suits  to  execute  trusts  of  a  will,  Rule  41  219 

how  ascertained  from  record 21 

if  defendant  objects  as  to,  plaintiff  must  in  14  days  set 

for  argument.  Rule  44 220 

if  no  record  solicitor  clerk  sends  interrogatories  to  par- 
ties, Rule  58 224 

in  equity 16 

in  equity,  table  of 19 

in  federal  courts 23 

in  joint  and  several  demands,  all  persons  liable  need  not 

be  brought  before  the  court,  Rule  42 229 

master  may  proceed  ex  parte  if  they  fail  to  appear,  Rule 

60 226 

misjoinder,  how  pleaded,  Rule  29 216 

necessary  and  unnecessary.  . 17,  18 

non  compos,  Rule  70 229 

nothing  confessed  against  non  compos,  Rule  30 216 

objections  as  to 21,  22 

objections  as  to.  Rule  43 220 

obtaining  interests  to  oust  the  jurisdiction 20 

officer  of  corporation  to  answer  under  oath 21 

orders  in  favor  of  persons  not  parties,  how  enforced. 

Rule  11 212 

partners  named  as  individuals 22 

plaintiff    16 

plaintiff  must  promptly  set  cause  for  hearing  as  to  de- 
fect of.  Rule  43 220 

refusing  to  join  as  plaintiffs  may  be  joined  as  defend- 
ants. Rule  16 213 

representatives  of  a  class  may  sue  or  defend.  Rule  38 . . .  219 

tardy  objection  as  to.  Rule  44 220 

trustee  as  party.  Rule  37 218 


INDEX  261 

[references  are  to  pages] 

Petition    31 

for  rehearing 54 

for  rehearing,  Rule  69 229 

for  appointment  of  guardian  ad  litem,  form  of 148 

Perpetuate  testimony,  bill  to 32 

Perpetual  injunction 128 

Pleas,  affirmative,  negative  and  anomalous 71 

and  demurrer  compared 70 

defined   70 

Plea,  form  of 71,  153 

form  of  to  part  of  bill 154 

Pleas,  grounds  of,  classification 73 

Plea  in  bar,  answer  in  lieu  of,  Rule  29 216 

in  federal  court 155 

Pleas,  how  waived 76 

Plea,  no  separate  plea  in  federal  coujts 75 

of  former  adjudication 155 

of  res  adjudicata,  form 155 

separate,  abolished.  Rule  29 216 

signing  and  verifying 154 

sufficiency  of,  Rule  33 217 

Pleas,  supported  by  answer 72 

table  of  different  grounds  of 74 

Plea,  testing  legal  sufficiency  of 75 

Pleas  to  jurisdiction 73 

Plea,  trial  of  ease  upon  plea  and  replication 75 

Pleas,   verification   of 76 

Pleadings,  additional,  when  permitted.  Rule  34 218 

alteration  in  upon  transfer  of  suit  to  law  side.  Rule  22 . .  214 
insufficiency  of  defensive  facts  now  pleaded  by  motion 

to  dismiss  or  in  answer,  Rule  29 216 

may  be  amended.  Rule  19 213 

purpose  of 26 

supplemental  pleadings  permitted  to  allege  facts  occur- 
ring or  learned  after  pleading  filed.  Rule  34 218 

technical  forms  abolished.  Rule  18 213 

to  be  signed  by  solicitors  of  record.  Rule  24 214 

verified  before  what  officers,  Rule  36 218 


262  INDEX 

[references  are  to  pages] 

Praecipe  for  commission  on  interrogatories 145 

for  process 145 

for  setting  cause  for  hearing 202 

for  subpoena  to  witness 146 

Process  or  summons 24 

manner  of  serving,  Rule  13 212 

may  be  amended,  Rule  19 213 

mesne  and  final  defined,  Rule  7 210 

on  behalf  of  persons  not  parties,  Rule  11 212 

praecipe  for 145 

prayer  for  in  bill 4X) 

returns  on  to  be  entered  on  equity  docket,  Rule  3 209 

Procedure,  involves  three  principal  steps 43 

Pi'oduction  of  books  and  papers  before  master 119,  120 

of  documents  in  federal  courts 92 

Pro  confesso  decrees 113,  114 

and  default  order,  form  of 147 

decree  for  want  of  replication  to  answer  containing 

counter  claim.  Rule  31 217 

decree,  speeding  cause  upon  motion  to  vacate.  Rule  17 . .  213 

Proofs  must  correspond  with  allegations 46 

Receiver 131 

bond  instead  of 133 

bonds  furnished  by  receiver  and  party  applying 133 

control  over  property 133 

of  corporations 134 

no  receiver  where  there  is  remedy  at  law 132 

object  and  grounds  of  appointment 131 

to  sue  him  leave  of  court  must  be  obtained 134 

Record,  agreed  statement  of.  Rule  77 232 

how  prepared  upon  appeal,  Rule  75 230 

how  evidence  to  be  stated  in.  Rule  75 230 

may  be  amended.  Rule  19 213 

Redemption  certificate  of  by  master 193 

Reference  to  master,  form  of  order 170-171 

to  a  master,  subject  to  discretion  of  court 118 

matters  of  account  must  be  referred  to  master 118 

to  master  exceptional  in  federal  court,  Rule  59 226 


INDEX  263 

[references  are  to  pages] 
Keference  to  master — Continued 

party  obtaining  to  speed  the  reference  or  opposite  party 

may  do  so  and  make  costs,  Rule  59 228 

Rehearing,  counsel  to  sign  petition  for,  Rule  57 224 

not  granted  after  term  if  appeal  lies  to  circuit  court. 

Rule   69 228 

petition  for  must  be  verified,  Rule  69 228 

petition  to  be  verified,  Rule  69 228 

Relief,  prayer  for,  in  bill 40 

prayer  for  may  be  in  alternative,  Rule  25 214 

Release,  form  of  plea  of 156 

Replication  defined 86 

amendment  of  bill  instead  of  special  replication 87 

form  of 165 

function  of 86 

how  waived 87 

need  not  be  signed 87 

not  required  in  federal  practice  except,  etc.,  Rule  31 . .  217 

to  set  off,  to  be  a  special  reply  to  set  off.  Rule  31 217 

to  counter  claim  to  avoid  default.  Rule  31 217 

effect  of  omitting 86 

Report  of  master 121,  122 

of  master,  form  of 173 

Res  adjudicata  form  of  plea  of 155 

Restraining  order,  form  of 200 

orders  in  federal  courts 129 

orders  to  be  filed  in  clerk 's  office.  Rule  73 229 

Return  of  summons 24 

of  summons  form 146 

Review,  form  of  bill 205 

Revivor,  form  of  bill 204 

Rights  of  security,  liberty  and  property 7 

Rulings,  upon  evidence 103,  104 

Scandal 50 

may  be  stricken  out  by  the  court.  Rule  21 214 

Secundum  allegata  et  probata 46 


264  INDEX 

! 

[references  are  to  pages] 

Service  of  process 24 

Set  off  to  be  stated  in  answer,  Rule  30 216 

Sequestration  form  of  writ 203 

writ  of 115 

Signature  to  bill 41 

solicitors  of  record  to  sign  every  pleading,  Rule  24 214 

Speaking  demurrer 68 

Special  commissioners 116 

and  general  demurrer,  form  of 150 

demurrer   64 

interrogatories,  part  of  bill 39 

interrogatories  may  be  used  or  may  be  omitted 42 

or  limited  appearance 147 

Specific  performance,  provision  as  to  decree,  Rule  8 211 

Stating,  part  of  bill 35 

part  of  bill,  (continued) 43 

Stare  decisis 2,  3,  4 

Statute  law,  nature  of 6 

Stipulation,  form  of 202 

Subpoena  duces  tecum,  form  of  master's 172 

to  witness,  praecipe  for 146 

Summons 140 

constructive  service  in  federal  courts 24 

Suit  erroneously  begun  in  equity  transferred  to  law  side, 

Rule  22 214 

when  deemed  begun 31 

Supplemental  bill 32,  52 

Temporary  injunctions 128 

Testimony  usually  to  be  taken  in  open  court  at  trial,  Rule  46  220 
Time,  computation  of,  Rule  80 232 

Ultimate  facts,  not  evidential  facts  should  be  pleaded 44 

Variance  in  proofs,  cured  by  amendment 91 

Verification  of  bill 41 

ai  bill  by  stockholder,  Rule  27 215 


INDEX  265 

[references  are  to  pages] 
Verification — Continued 

of  bill  if  special  relief  pending  the  suit  is  desired,  Rule 

25 214 

of  pleading  before  what  officers,  Rule  36 218 

Withdrawal  of  answer  and  default  therefor 147 

Witnesses,  compensation  of,  Rule  52 222 

Writ  of  preliminary  injunction,  form 201 


STANDARD  LAW  SCHOOL  CASE  BOOKS 

Administration  and  Government — Goodnow's  Cases  on  Government  and  Administ 

tion,    by   Frank  J.   Goodnow,   Eaton   Professor   of  Administrative  Law   and  Muniei 

Science   in  Columbia  University.      1   volume  $2.50   net. 
Agency — Mecheni's    Cases    on    the    Law    of   Agency,  by  Floyd  R.  Mechem,  Professor 

Law  in  the  University  of  Cliicago.      1  volume  $3.00  net. 
American  Administrative  Law — Goodnow's   Cases  on  American   Administrative  L 

Including  Public  Officers  and  Extraordinary   Legal   Remedies,  by  Frank  J.  Go 

now.      1   volume  $0.00   net. 
Appellate  Practice — Sunderland's  Cases  on  Appellate  Practice,  by  Edson  R.  Sund 

land,  Professor  in  the  University  of  Michigan  Law  School.    $4..->«  net. 

Bailments  and  Carriers — Goddard's  Cases  on  Bailments  and  Carriers,     by    Edwin 
Goddard,    Professor    of    Law    in    the   University  of  Michigan.     1   volume  $3.75  net 

Code  Pleading — Hinton's  Cases  Code  Pleading  Under  Modern  Codes,    by    Edwin 
Hinton,    Professor    of   Law,    University   of   Missouri.      1    volume    ?4.00    net. 

Code   Pleading — Sunderland's   Cases    on    Code   Pleading,    by    Edson    R.    Sunderla 
Professor  in  the   University  of  Michigan  Law   School.    $4.5«  upt. 

Commercial  Law — Bay's  Cases  on  Commercial  Law 

Common  Law  Pleading — Shipp  and  Daish's  Cases  on  Common  Law  Pleading,   by 

Richard   Shipp  and   John   B.   Daish.      1   volume   .$2.50   net. 
Common  Law  Pleading- — Sunderland's  Cases  on  Common  Law  Pleading,  by  Edson 

Sunderland,  Professor  in  the  University  of  Michigan  Law  School.    $4.5o  net. 
Conflict  of  Laws,    Cases.       See  International   Law. 
Constitutional  Law — Boyd's  Cases  on  American  Constitutional  Law,  by    C.    E.    Bo 

second   edition   by   C.    E.   Boyd  $3.00   net. 
Criminal    Law,    Knowlton's    Cases    on    Criminal    Law,    by   Jerome   C.   Knowlton,   M 

shall  Professor   of  Law   in   tlie   University   of   Michigan.      1   volume  $3.00   net. 
Criminal  Procedure — Sunderland's  Cases  on  Criminal  Procedure,  by  Edson  R.   S 

derland.   Professor  of  Law  in  the  Uuiversity  of  Michigan  Law  School.     $4.50 
Damages — Russell's    Cases,    by    Isaac    Franklin  Russell,  Professor  of  Law   in  New  Yi 

University  Law  School.      1  volume  $4.00  net. 
Domestic    Relations — Holbrook's    Cases,     by  Evans  Holbrook,   Professor  of  Law  in 

University    of    Michigan. 
Equity  Pleading  and  Practice — Sunderland's  Cases  on  Equity  Pleading  and  Practi 

by  Edson  R.  Sunderland,  Professor  in  the  University  of  Michigan  Law  Scho 

$4.50  net. 
Equity  Pleading  and  Practice — Thompson's  Cases  on  Equity  Pleading  and  Practi 

by    Bradley    M.    Thompson,    Professor    of    Law  in     University    of    ;Michigan.  $3.00 
Evidence — Sunderland's   Cases   on   Evidence.     By  Edson   R.    Sunderland,   Professor 

the  University  of  Michigan  Law  School.      $4.50  net. 
E.xtraordinary   Legal   Remedies — GoodnoAv's   Cases   on   Officers,    including   Extraoi 

nary    Legal    Remedies,    by  Frank  J.  Goodnow,  of  the  Law  Department  of  Colum 

University.     1  volume  $5.00  net. 
International   Law — Dwyer's    Cases   Private   International    Law,     second  ed.,  by  Jc 

\V.  Dwyer,  of  the  Law  Department,  University  of  jNIichigan.     $4.00  net. 
Negotiable  Instruments,  Bunker's  Cases  on  Negotiable  Instruments,      by     Robert 

Bunker,   Professor   of  Law   in  the  University   of  Michigan.      1   volume  $4.00  net. 
Officers — Goodnow's   Cases   on   the   Law   of   Officers,    including   Extraordinary   Le: 

Remedies,     by   Frank   J.   Goodnow,   of   the   Law   Department   of   Columbia  Univers: 

1    volume   $5.00   net. 
Partnership — Mechem's   Cases  on  Partnership,    by   Floyd   R.   Mechem.     Second   edit 

by  Frank  L.  Sage,  Professor  of  Law  in  the  University  of  Michigan.      1  vol.  $3.50  r 
Partnership — Enlarged   Edition,   Mechem's    Cases,    same    as    above    with    addition 

Supplement.     1    volume,    third    edition,   $4.50   net. 
I'rocedure — Sunderland's   Cases    on   Procedure  7  volumes  S4.50  each  (in  preparation). 

Property — Rood's   Cases  on  Property,    Second    Edition,    by   John    R.    Rood,    Professor 
Law  in  the  University  of  Michigan.     1   volume  $3.75  net. 

Suretyship — Wilson's  Cases  on  Guaranty  and  Suretyship,  by  H.  H.  Wilson,  of  the  L 

Department   of   the   University   of   Nebraska.      1   volume  $4.00  net. 
Trial    Practice — Sunderland's   Cases   on    Trial    Practice,    by    Edson    R.    Sunderland 

the  Law   Department   of  the   University   of  Michigan.      $4.50   net. 
Ta.xation — Goodnow's    Cases    on    Taxation,  by  Frank  J.   Goodnow   of  the   I>aw   Depa 

ment   of  Columbia  University.      1   volume  $.'>.00  net. 
Wills — Bates,    Cases    on    Wills,     by    Henry    M.    Bates,    Dean    of    the    Law    Departme 

University   of  Michigan.      1   volume. 

CALLAGHAN    &    COMPANY 

General  Offices  CHICAGO  Retail  Store 

401-409  E.  Ohio  Street  v>  xx  j.  v..x^vi  v^  68  W.  Washington  Street 


LEADING  LAW  SCHOOL  TEXT  BOOKS 


A«cncv-Biiys.  A  liaiulliook.  by  Alfred  W.  Hays,  Pro- 
f.s-oi-  111  l.au.  Nnitlnvestern  University  School  of 
CiiiuiiuTce.    $L50  net. 

Akciicv  Outlines— Mechem  Outlines  of  Agency,  by 

Fliiyii  K.  Mei'heiii.    Professor  of  Law  in  the  University 
of  Chicairo.     Second  Edition.    $2.00  net. 

.\ucncv— Mechem  on  Agency.  A  treatise  by  P'loyd  R. 
Mechem.    $5.00  net. 

.'Vmerlcan    Law— Andrews'   American   Law.    Second 
Kdition  bv  .1.  O.  Andrews.    2  vols.  $12.00. 
Same.  1  vol.  ed..  $5.00  net. 

Bailments  and  Carriers— Goddard's  Outlines,  by  E.  C. 

(iiiddaid.  Professor  of  Law  in  the  L'niversity  of  Mich- 
iiran.    S2.50net. 

Bailments  and  Carriers— Van  Zile,  by  Philip  T.  Van 
Zile.  Dean  Detroit  College  of  Law.    Second  Ed.  $5.00. 

Bankruptcy— Bays.  A  handbook  on  Debtor,  Creditor 
and  Bankruptcy,  by  A.  \V.  Bays.    $1.50  net. 

Blackstone's  Commentaries— Cooley.  4th  Edition 
Ciiinmcntaries  on  the  Laws  of  England  by  William 
Hlacksione,  with  a  translation  of  all  foreign  words 
and  phrases  appearing  in  the  text  and  very  full  and 
idpious  notes  bv  Thomas  M.  Cooley.  Fourth  Edition 
by  J.  1)  Andrews.  2  volumes  $9.00  net. 
.Same.  :'.rd  Kdition  $6.00  net. 

Business  Law  and  Methods— By  George  L.  Corlis, 
Dean  Benton  College  of  Law.    1  volume. 

Carriers— Hutchinson.  The  Law  of  Carriers  by  Robert 
Hutchinson,  Second  Ed.  by  Floyd  R.  Mechem.    $4.00. 

Code  Pleading— Phillips.  Principles  of  Pleadings  in 
Actions  under  the  Codes  of  Civil  Procedure  by  G.  L. 
Phillips.    $4,00  net. 

Commercial  Law— Bays.  American  Commercial  Law 
Series.    9  vols.    $12.00.    Separately  per  volume  $1.50. 

Commercial  Law— Corlis.  By  George  L.  Corlis,  Dean 
Benton  College  of  Law.    1  volume. 

Common  Law  Pleading— Andrew^s'  Stephen's  Plead- 
ings. Bv  Henry  -John  Stephen.  Second  Edition  by 
.).  D.  Andrews.    $3.50  net. 

Contracts — Anson.  Second  American  Edition,  by 
•Icronie  C.  Knowlton.  Professor  of  Law  in  the  Univer- 
sity of  Michigan.    $3.50  net. 

Contracts— Bays.    A  handbook  by  A.  W.  Bays.    $1.50 

Contracts— Hammon.  The  General  Principles  of  Con- 
tracts, by  Louis  L.  Hammon.    $5.00  net. 

Contracts— Willis.  A  treatise  by  Hugh  E.  Willis,  Pro* 
fessorof  Law,  University  of  Minnesota  Law  School. 
$3.00  net. 

Corporations— Municipal -Elliott.  Second  Edition,  by 
.Idhn  E.  Macv,  Professor  in  Boston  University  Law 
School.    $4.00  net. 

Corporations— Bays.  A  handbook  by  A.  W.  Bays.  $1.50 

Corporations— Marshall— [Private].  A  treatise.  Se- 
cimd  Edition  by  William  L.  Marshall  and  William  L 
Claik.    $5.00  net. 

Corporations— Abbott- [Public].  A  treatise  by  How- 
ard S.  Abbott.    1  volume  $4.00. 

Criminal  Law— Clark  &  Marshall— Crimes.  Second 
Edition  by  Herschell  B.  Lazell.    $5.00  net. 

Criminal    Law    and  Procedure    Outlines     Washburn. 

By  Emery  Washburn.     Third   Edition  by  Marshall  D. 
Ewell.    S2.50  net. 

Damages— Willis.  A  concise  treatise  by  Hugh  E.  Willis. 
Professor  of  Law,  University  of  Minnesota.    $3.00  net. 

Dictionary— Cyclopedic  Law  Dictionary.     $5,00  net. 

Dictionary— Kinney's  Dictionary  and  Glossary.    $4.00. 

Domestic  Relations— Peck,  by  Epaphroditus  Peck,  of 
the  Law  Dept.  of  Yale  University. 

Domestic  Relations— Long.  A  treatise  by  Joseph  K. 
Long.  Prosessor  of  Law  in  Washington  and  Lee  Uni- 
versity.   $3  50  net. 


Equity  Pleading  and  Practice— Fletcher.  _  Equity 
Pleading  Practice  and  Forms,  by  William  Mcadc 
FIctclicr.    $5.00  net. 

Equity  Pleading  and  Practice- Van  Zile,  by  Philip  T 
Van  Zile.     $5.00  net. 

Evidence— Hammon.  A  treatise,  by  Louis  L.  Hammon. 
$5.00  net. 

Evidence— Hughes.  An  illustrated  treatise,  by  Thomas 
W.  Hughes.  Prcjfessor  of  Law  in  the  University  of 
Illinois.    $4.00  net. 

Evidence— Kennedy.  A  practical  Codification  by 
Richard  Lee  Kennedy.    $2.00  net. 

Evidence— Reynolds  Theory  of  Evidence,  by  William 
Reynolds.    $2.00  net. 

Evidence— Reynolds.  Trial  Evidence  and  Cross  Ex- 
amination, i)ocket  edition.    Limp  leather  .$3.50  net. 

Insurance — Bays.  A  handbook,  by  Alfred  W.  Bays. 
$1.50  net. 

International  Law— BordAvell's  Laws  of  War.     By  W. 

P,  Bordwell,  Professor  of  Law,  University  of  Missouri. 
$3.50  net. 

International  Law — Taylor.  The  Origin  and  Growth  of 
International  Public  Law,  by  Hannis  Taylor.   $5.50  net. 

Jurisprudence — Pattee.  The  Essential  Nature  of  Law, 
by  W.  S.  Pattee.  Dean  Law  Department,  University  of 
Minnesota.    $2.50  net. 

Legal  Ethics— Warvelle.  A  discussion  of  professional 
conduct  by  George  W.  Warvelle.    $1.50  net. 

Negotiable  Instruments— Bays.  A  handbook,  by  Alfred 
W.  Bays.    $1.50  net. 

Negotiable  Instruments— Bunker,  by  Robert  E.  Bun- 
ker, Professor  of  Law  in  the  Univensity  of  Michigan 
Law  School.    $3.50. 

Negotiable  Instruments— Ogden,  by  J.  M.  Ogden- of 
the  Indiana  Law  School.    $4.00. 

Negotiable  Instruments— Selover.  Second  Edition  by 
Wm.  H.  Oppenheimer.    $4.00  net. 

Partnership— Bays.    A  handbook,  by  A.  W.  Bays.  $1.50 

Partnership— Mechem.  By  Floyd  R.  Mechem.  Second 
edition,  $2.50  net. 

Partnership— Shumaker,  by  Walter  A.  Shumaker.  Sec- 
ond edition.    $3.00  net. 

Personal  Property— Childs,  by  Frank  Hall  Childs, 
sometime  Professor  of  Law  in  Chicago  Kent  College 
of  Law.     [In  Preparation.] 

Officers— Mechem.  Public  Offices  and  OtHcers,  by 
Floyd  R.  Mechem.    $5.00  net. 

Ouizzers — Walsh.  Students  Quiz  Books.  13  numbers 
Paper,  each  50  cents. 

Real  Property- Bays.   A  handbook  by  A.  W.  Bays,  $1.50 

net. 

Real  Property— Tiffany,  by  Herbert  T,  Tiflfany     2  vol- 
umes.   $10.iiO. 
Student's  edition  [2  volumes  in  IJ  $7.00  net. 

Real  Property- Warvelle.  Elements,  by  George  W. 
Warvelle.     Second  edition.    $4.00  net. 

Roman  Law— Sandar's  Justinian  Institutes.  First 
American  Ed.  by  W.  E.  Hammond.    $5.00  net. 

Sales-A  handbook  by  Alfred  W.   Bays.    $1.50  net. 

Suretyship— Spencer.  A  treatise  on  Suretyship  and 
Guaranty,  by  Edward  W.  Spencer,  Dean  Milwaukee 
Law  School. 

Torts— Cooley.  A  new  Law  School  Edition,  by  John 
Lewis.    $5.00  net. 

Torts— Cooley's  Elements,  by  Thomas  M.  Cooley. 
$3.50  net. 

Trusts— Pound,  by  Roscoe  Pound,  Professor  of  Law  in 
Harvard  University. 

Wills— Rood.  Including  also  Gifts  Causa  Mortis  and  a 
summary  of  the  law  of  Descent,  Distribution  and 
Administration,  by  John  R.  Rood,  Professor  of  Law 
University  of  Michigan.    $4.00  net. 


CALLAGHAN    &    COMPANY 


General  Offices 
401-409  E.  Ohio  Street 


CHICAGO 


Retail  Store 
68  W.  Washington  Street 


LAW  LIBRARY 

DKITERSITY  OF  CALIFORNIA 

LOS  A2»(GELES 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


AA    000  853  230    i 


